1 EFFECTIVE CASE MANAGEMENT IN THE FEDERAL COURT Prothonotary Kevin R. Aalto August 16, 2014 - St. John's, NL August 16, 2014 - St. John's, NL.

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EFFECTIVE EFFECTIVE CASE MANAGEMENT CASE MANAGEMENT

IN THE FEDERAL COURTIN THE FEDERAL COURT

Prothonotary Kevin R. AaltoProthonotary Kevin R. Aalto

August 16, 2014 - St. John's, NLAugust 16, 2014 - St. John's, NL

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OverviewOverview Introduction to the Federal CourtIntroduction to the Federal Court

Case Management (CM)Case Management (CM)

The Five Fundamentals of CMThe Five Fundamentals of CM

1.1. Federal Courts RulesFederal Courts Rules, Part 9, Part 9

2.2. ProthonotariesProthonotaries

3.3. FlexibilityFlexibility

4.4. AccessibilityAccessibility

5.5. AccountabilityAccountability

Appellate Review in Case ManagementAppellate Review in Case Management

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IntroductionIntroduction to the Federal Court to the Federal Court

National CourtNational Court Statutory Court – Statutory Court – Federal Courts ActFederal Courts Act plus approx. 100 plus approx. 100

other federal statutesother federal statutes

no inherent general jurisdiction no inherent general jurisdiction

regular sittings across the countryregular sittings across the country

Federal matters Federal matters

32 Judges; 6 Supernumerary Judges; and 32 Judges; 6 Supernumerary Judges; and 6 Prothonotaries 6 Prothonotaries

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Main Areas of JurisdictionMain Areas of Jurisdiction

ImmigrationImmigration

Intellectual Property including proceedings under Intellectual Property including proceedings under the the Patented Medicines (Notice of Compliance) Patented Medicines (Notice of Compliance) RegulationsRegulations

Aboriginal claimsAboriginal claims

AdmiraltyAdmiralty

Judicial Reviews of federal boards, commissions or Judicial Reviews of federal boards, commissions or other tribunalsother tribunals

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National security issuesNational security issues

designated proceedings - security certificatesdesignated proceedings - security certificates

warrant requestswarrant requests

public disclosure of evidence (s. 38 of the public disclosure of evidence (s. 38 of the Evidence Evidence Act)Act)

Some statisticsSome statistics 38,441 proceedings instituted 2012-1338,441 proceedings instituted 2012-13

23,387 judgments, orders and directions in 2012-1323,387 judgments, orders and directions in 2012-13

Over 1,200 cases actively case managedOver 1,200 cases actively case managed

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What is Case Management?What is Case Management?

Case management, or specially managedCase management, or specially managed proceedings, proceedings, is the coordination of Court is the coordination of Court processes and resources intended to move processes and resources intended to move cases in a timely manner from commencement cases in a timely manner from commencement to disposition, regardless of the type of to disposition, regardless of the type of disposition. It involves active supervision by a disposition. It involves active supervision by a Case Management Judge of the progress of Case Management Judge of the progress of cases and introduces new supervisory cases and introduces new supervisory activities such as status reviews, dispute activities such as status reviews, dispute resolution services, and trial management resolution services, and trial management conferences conferences

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Labour intensive – 70 - 80% of CMJ’s timeLabour intensive – 70 - 80% of CMJ’s time

Resource intensive - need experienced CaseResource intensive - need experienced Case Management Officers Management Officers

Art not a scienceArt not a science

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Objectives of Case ManagementObjectives of Case Management

To reduce unnecessary costs and delayTo reduce unnecessary costs and delay

To facilitate early and fair settlementsTo facilitate early and fair settlements

To bring cases promptly to a just resultTo bring cases promptly to a just result

To allow sufficient time for the conduct of theTo allow sufficient time for the conduct of the proceeding proceeding

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Case Managed CasesCase Managed Cases

All Applications under the All Applications under the Patented MedicinesPatented Medicines (Notice of Compliance) Regulations (Notice of Compliance) Regulations

Complex actionsComplex actions

Cases where nothing has happened (statusCases where nothing has happened (status reviews) reviews)

All Class proceedingsAll Class proceedings

Over 1200 proceedings are case managedOver 1200 proceedings are case managed by Prothonotaries appointed as Case by Prothonotaries appointed as Case Management Judges Management Judges

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The Five Fundamentals The Five Fundamentals of Case Managementof Case Management

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1.1. Federal Courts Rules - Federal Courts Rules - Part 9Part 9“Case Management and “Case Management and

Dispute Resolution Services”Dispute Resolution Services”

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Case Management RulesCase Management Rules

Rule 3 – General Principle of the Rule 3 – General Principle of the Federal Courts RulesFederal Courts Rules:: Interpret and apply the rules:Interpret and apply the rules:

• in every proceedingin every proceeding

• justjust

• most expeditiousmost expeditious

• least expensiveleast expensive

• determination on its meritsdetermination on its merits

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Rule 383 – Appointment of Case ManagementRule 383 – Appointment of Case Management Judge (“CMJ”) Judge (“CMJ”)

Rule 385 – Powers of a CMJRule 385 – Powers of a CMJ

Case Management RulesCase Management Rules

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How does a case become How does a case become Specially Managed?Specially Managed?

Status ReviewsStatus Reviews Rule 380(1) – ActionsRule 380(1) – Actions

• 180 days from date of issuance and no defence filed/180 days from date of issuance and no defence filed/no default judgment no default judgment

• Notice of Status ReviewNotice of Status Review• 360 days no requisition for Pre Trial Conference –360 days no requisition for Pre Trial Conference –

automatically into CMautomatically into CM

Rule 380(2) ApplicationsRule 380(2) Applications• 180 days from date of issuance no requisition for a 180 days from date of issuance no requisition for a

hearinghearing• Notice of Status ReviewNotice of Status Review

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How does a case become How does a case become Specially Managed?Specially Managed?

Result of Status ReviewResult of Status Review Proceeding dismissed or – Proceeding dismissed or –

Order proceeding be specially managed and issue an Order proceeding be specially managed and issue an order under Rule 385order under Rule 385

Request of partiesRequest of parties Streamlining Complex Litigation – May 1, 2009 Streamlining Complex Litigation – May 1, 2009

(Notice to the Profession)(Notice to the Profession) Request may be by letter – motion not necessarily Request may be by letter – motion not necessarily

requiredrequired

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How does a case become How does a case become Specially Managed?Specially Managed?

By Order of the CourtBy Order of the Court Court may at any time order CM (Rule 384) or on Court may at any time order CM (Rule 384) or on

CourtCourt’’s motion – Rule 47s motion – Rule 47

All PM(NOC) ProceedingsAll PM(NOC) Proceedings Practice Direction – December 7, 2007Practice Direction – December 7, 2007

Class ProceedingsClass Proceedings Rule 384.1Rule 384.1

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Powers of a Powers of a Case Management JudgeCase Management Judge

Rule 385Rule 385 CMJ deals with all matters prior to trial or hearingCMJ deals with all matters prior to trial or hearing

Give directions to satisfy Rule 3Give directions to satisfy Rule 3

Fix timelines notwithstanding any other ruleFix timelines notwithstanding any other rule

Fix and conduct Dispute Resolution ConferencesFix and conduct Dispute Resolution Conferences

Hear and determine all motions prior to assignment of Hear and determine all motions prior to assignment of hearing datehearing date

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Tools of Case ManagementTools of Case Management

Governed by Rule 385Governed by Rule 385 Case conferencesCase conferences MotionsMotions Orders and DirectionsOrders and Directions Trial management conferencesTrial management conferences Dispute Resolution ServicesDispute Resolution Services MediationMediation Fixed trial datesFixed trial dates

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2 - Prothonotaries2 - Prothonotaries

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Judicial officers with full judicial independenceJudicial officers with full judicial independence 6 regionalized Prothonotaries (Associate Judges)6 regionalized Prothonotaries (Associate Judges) 2 in Ottawa; 2 in Toronto; 1 in Vancouver; 1 in Montreal2 in Ottawa; 2 in Toronto; 1 in Vancouver; 1 in Montreal

Jurisdiction – Rule 50:Jurisdiction – Rule 50: interlocutory proceedingsinterlocutory proceedings case managementcase management mediationsmediations simplified trials - currently $50Ksimplified trials - currently $50K have final jurisdiction on motions to strike any type ofhave final jurisdiction on motions to strike any type of

proceeding in any amount proceeding in any amount appointed by the Chief Justice as Case Managementappointed by the Chief Justice as Case Management

Judges Judges

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3 - Flexibility3 - Flexibility

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Proportionality principleProportionality principle Not a “one-size fits all” or cookie cutterNot a “one-size fits all” or cookie cutter

approach approach Make the Rules fit the case not the case fit theMake the Rules fit the case not the case fit the

Rules Rules Active v. Passive: CM is not babysitting – interfereActive v. Passive: CM is not babysitting – interfere

in the case only as needed or necessary in the case only as needed or necessary No motions without first holding a case conferenceNo motions without first holding a case conference Cajole factorCajole factor A CMJ needs A CMJ needs “patience, flexibility, firmness,“patience, flexibility, firmness,

ingenuity, and an overall sense of fairness to all ingenuity, and an overall sense of fairness to all parties” parties”

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4 - Accessibility4 - Accessibility

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Case conferences – at any time – any placeCase conferences – at any time – any place

– usually by telephone – usually by telephone Get involved early in the complex casesGet involved early in the complex cases

Give directions for conduct of casesGive directions for conduct of cases

Review status and timetable of litigationReview status and timetable of litigation

Discuss and manage and often settle issues on theDiscuss and manage and often settle issues on the spot - i.e. production issues/confidentiality/refusals on spot - i.e. production issues/confidentiality/refusals on examinations/expert reports/hearing dates examinations/expert reports/hearing dates

Have positions set out in correspondenceHave positions set out in correspondence

Get a sense of whether and when settlement should beGet a sense of whether and when settlement should be explored – mediation? explored – mediation?

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5 - Accountability5 - Accountability

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Make them give dates for scheduling of stepsMake them give dates for scheduling of steps How much time do you reasonably need to complete the next step?How much time do you reasonably need to complete the next step?

Scheduling ordersScheduling orders

Have one party keep minutes and alternateHave one party keep minutes and alternate between parties (we now use DARS for many between parties (we now use DARS for many hearings) hearings)

Have an agenda in advance –with positions ofHave an agenda in advance –with positions of parties on the issues to be addressed parties on the issues to be addressed

Provide Court with updates of progress Provide Court with updates of progress

Determine when hearings judge might get involvedDetermine when hearings judge might get involved

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Appellate Review Appellate Review in Case Managementin Case Management

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Sawridge Band v. HMQ,Sawridge Band v. HMQ, 2006 FCA 228 2006 FCA 228 per Evans J.A.: per Evans J.A.:

[21] First, this Court is very reluctant to interfere with decisions [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, 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 particularly one as complex, lengthy and difficult as this one. As a result of living with the matter over time, the case management result of living with the matter over time, the case management judge will have acquired an overall understanding of it which an judge will have acquired an overall understanding of it which an appellate court, on the basis of hearing an appeal on a particular appellate court, on the basis of hearing an appeal on a particular issue, cannot possibly match in either depth or breadth.issue, cannot possibly match in either depth or breadth.

[22] When performing essentially case management functions [22] When performing essentially case management functions judges are appropriately given "elbow room" by appellate courts, so 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 that they can get on with what is often a difficult job, calling for a mix of of patience, flexibility, firmness, ingenuity, and an overall sense patience, flexibility, firmness, ingenuity, and an overall sense of fairness to all partiesof fairness to all parties. [emphasis added]. [emphasis added]

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See also See also j2Global Communications Inc. j2Global Communications Inc. v. Protus IP Solutions Inc., v. Protus IP Solutions Inc., 2009 FCA 41, 2009 FCA 41, again per Evans, J.A.: again per Evans, J.A.: It has often been said in this Court that, because of It has often been said in this Court that, because of

their intimate knowledge of the litigation and its their intimate knowledge of the litigation and its dynamics, prothonotaries and trial judges are to be dynamics, prothonotaries and trial judges are to be afforded ample scope in the exercise of their discretion afforded ample scope in the exercise of their discretion when managing cases . . . Since this Court is far when managing cases . . . Since this Court is far removed from the fray, it should only intervene in order removed from the fray, it should only intervene in order to prevent undoubted injustices and to correct clear to prevent undoubted injustices and to correct clear

material errors. None have been demonstrated here.material errors. None have been demonstrated here.

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Questions???Questions???