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An attempt at reinventing the wheel, when the current rules require that it be square with no axle.
Motivations for changes
The problem is the continuing arms race between the sides as the law and technology develop. Cases are huge and sprawling precisely because the system allows it, with no corresponding qualitative improvement in the results.
Further, the current system looks increasingly like a case of the blind tying up the astigmatic and kicking them over a precipice and calling it leading, an uninformed attempt to micromanage what was intended to be a self-regulating system. I've noticed in my own practice that the formalism and delays lead to a significant amount of posturing, bullying, evasion and generally lawless behaviour to try to force a settlement when neither side wants to be dragged through the process of getting an actual adjudication.
Discard the perfectionism and trust each party to get their own case as good as they can.
Focus is on getting one's case ready for trial, subject to a brief opportunity to formally canvass settlement possibilities.
Keep the onus on the plaintiff to prove its case.
Very limited discovery of opposing side's documents. A party should not be forced to aid the other side in proving its case.
Relatively draconian time limits intended to keep things moving. (NB: Our statute of limitations has a default of 2 years from the discovery of the claim, to a maximum of 15 years from the act or omission.)
No oral examination for discovery. Impeachment by prior inconsistent statement can be done the old fashioned way.
Left undefined: chambers and requisition procedure; costs consequences of offers. These can be left for the court to fill in, or the current systems can be used (however uncomfortably).
Overriding rule
Subject to these rules and the applicable law, the court has unfettered discretion and inherent jurisdiction to make any order or direction and conduct any hearing in any manner it sees fit, with the aim of ensuring as just and speedy a resolution of a matter on the merits as the circumstances allow.
Plaintiff files a writ
Writ must name cause of action, approximate time of act or omission that gave rise to cause, and place of trial
Plaintiff has 30 days to serve on defendant or apply for substituted service
If court file has neither motion for sub nor affidavit of service after this time limit, court file is automatically destroyed (and the filing fee is NOT refunded) and all original documents not specifically made for the litigation sent back to the filing party COD, and for all purposes it is as though the writ were never filed
Plaintiff serves writ on defendant
Defendant has 30 days from service to file an appearance
When plaintiff attempts to file for summary judgment for non-filing of an appearance, the registry must check the court file for an appearance or a statement of claim, and if there is an appearance or there is no statement of claim, the application will be immediately rejected on that basis
Defendant serves appearance on plaintiff (optional)
Plaintiff has 30 days to file a statement of claim
If plaintiff fails to file within this time limit, defendant may apply to have the claim dismissed
Plaintiff files a statement of claim
Must include cause(s) of action from writ but may add further causes of action
Must describe facts underlying each cause of action named, who did what, when such things happened, and a summary of each head of relief sought
Registrar may reject any SoC for undue prolixity
Registrar may reject any SoC for failure to sufficiently and clearly state underlying facts of cause
Key principle: is it enough to cause a defendant to know what was done or alleged that they can either admit or deny it with their own knowledge, and not substantially more in a distracting or otherwise unhelpful way
Plaintiff serves statement of claim on defendant
Defendant is not obliged to file anything from here on
Each side has 6 months to provide complete lists of exhibits and witnesses, and make available for viewing, all exhibits they will present to the court at trial
No counterclaim process
Parties may agree or court may order or direct that 2 or more matters be heard in a single trial
No oral deposition/examination for discovery without consent
Parties may arrange this out of court by consent and a transcript may be an exhibit
Either party may call for mandatory mediation with a judge
All discovery and trial time limits and countdowns on hold between demand for mediation and end of mediation
Judge may give non-binding preliminary opinion on merits
Subsequent mediations may be called by consent of parties and leave of the court without affecting any timing
Parties serve each other exhibit lists, updated as needed
After 6 months from the date the statement of claim is served, no more lists may be served by either party except by consent or to correct immaterial slips and clerical errors
Must indicate in list how the exhibit is relevant, the date the exhibit was created or made known to the party, and if a document the # of pages and if an object the approx. size
May request copies or photos of anything, at requestor's cost
May challenge list in front of registrar, master or judge on grounds that one or more exhibits is irrelevant to the case, and order may be made that the list is struck in part or in whole
May apply for order of production of an exhibit that a party knows or has reasonable grounds to believe is in the possession of the other party or solicitor (including a copy) - must describe exhibit to allow other party to ascertain it, and explain what pleaded point the applicant believes it proves or disproves
Implied undertaking that this is all for this litigation only
Parties serve each other witness lists, updated as needed
Subject to same time limit as exhibit lists
Must indicate contact information and brief summary of facts the party intends to have that witness depose to
Implied undertaking that this is all for this litigation only
Set Trial
Trial date must be set to a date that is within 6 months of the deadline for serving all exhibit lists, or the service of the plaintiff's final exhibit list, whichever comes first, provided that no trial date may be earlier than 1 month after the deadline for serving all exhibit lists except by consent
Plaintiff's final exhibit list must be signed by both sides for this trial deadline to have effect and the plaintiff may not serve any subsequent list
Plaintiff's final exhibit list is effective upon a fully signed copy being filed with the court
Upon the deadline for serving all exhibit and witness lists, each party must file its final lists with court (these do not need to be signed by both sides)
If parties fail to agree on a trial date, a motion may be made for a court ordered trial date or, if the defendant can show that the plaintiff is the only cause of an unreasonable delay, the court may at its discretion dismiss the claim
Once a trial date is set, or contemporaneously with the setting of a trial date, either party may without notice apply for an order requiring that the employer of any witness, or the school in which the witness is enrolled, allow that witness to take time off without any sanction or penalty whatsoever to testify on the scheduled trial date or any other date as the court may order or direct
At Trial
Unlisted exhibits are inadmissible and unlisted witnesses may not testify, except with leave of the court
Subject to any other rule of evidence, the court must, absent a clear reason not to do so, admit into evidence a reasonably reliable copy of a lost or destroyed original document, a photograph of a lost, destroyed, perishable or unavailable object, or the testimony of a witness who intends to depose what was originally intended to be deposed by a listed witness who has become for any reason incapable of giving that testimony
The court shall not consider the contents of lists at trial except to help the court determine whether certain other evidence is to be admitted, and the description of a listed item has no effect other than identifying the item
The court may make any order allowed by law whatsoever at the conclusion of the trial, provided both sides have had a chance to present the underlying facts
If a claim for relief is pleaded and not dealt with by court order within 1 year of the conclusion of the trial, it is conclusively deemed to have been dismissed, without any effect on any costs already ordered
The court may impose a tariff
Court discretion as to costs otherwise
A party has 10 business days to apply by desk order for leave for the trial court's reconsideration on a material error of law or a finding of fact not evident on the record, or judicial notice of something for which evidence can be produced to the contrary
The court may refuse leave, allow leave and set a hearing date, or allow leave and give the parties time to provide written submissions (and new evidence in the case of an error of judicial notice)
Appeal countdown begins upon the end of this deadline if no leave is given for reconsideration, or the decision at the end of the reconsideration
Parties may go straight to appeal without reconsideration
Parties may not begin appeal proceedings if there is an outstanding reconsideration or leave application, and the trial court must not reconsider a decision under appeal
The problem is the continuing arms race between the sides as the law and technology develop. Cases are huge and sprawling precisely because the system allows it, with no corresponding qualitative improvement in the results.
Further, the current system looks increasingly like a case of the blind tying up the astigmatic and kicking them over a precipice and calling it leading, an uninformed attempt to micromanage what was intended to be a self-regulating system. I've noticed in my own practice that the formalism and delays lead to a significant amount of posturing, bullying, evasion and generally lawless behaviour to try to force a settlement when neither side wants to be dragged through the process of getting an actual adjudication.
Discard the perfectionism and trust each party to get their own case as good as they can.
Focus is on getting one's case ready for trial, subject to a brief opportunity to formally canvass settlement possibilities.
Keep the onus on the plaintiff to prove its case.
Very limited discovery of opposing side's documents. A party should not be forced to aid the other side in proving its case.
Relatively draconian time limits intended to keep things moving. (NB: Our statute of limitations has a default of 2 years from the discovery of the claim, to a maximum of 15 years from the act or omission.)
No oral examination for discovery. Impeachment by prior inconsistent statement can be done the old fashioned way.
Left undefined: chambers and requisition procedure; costs consequences of offers. These can be left for the court to fill in, or the current systems can be used (however uncomfortably).
Overriding rule
Subject to these rules and the applicable law, the court has unfettered discretion and inherent jurisdiction to make any order or direction and conduct any hearing in any manner it sees fit, with the aim of ensuring as just and speedy a resolution of a matter on the merits as the circumstances allow.
Plaintiff files a writ
Writ must name cause of action, approximate time of act or omission that gave rise to cause, and place of trial
Plaintiff has 30 days to serve on defendant or apply for substituted service
If court file has neither motion for sub nor affidavit of service after this time limit, court file is automatically destroyed (and the filing fee is NOT refunded) and all original documents not specifically made for the litigation sent back to the filing party COD, and for all purposes it is as though the writ were never filed
Plaintiff serves writ on defendant
Defendant has 30 days from service to file an appearance
When plaintiff attempts to file for summary judgment for non-filing of an appearance, the registry must check the court file for an appearance or a statement of claim, and if there is an appearance or there is no statement of claim, the application will be immediately rejected on that basis
Defendant serves appearance on plaintiff (optional)
Plaintiff has 30 days to file a statement of claim
If plaintiff fails to file within this time limit, defendant may apply to have the claim dismissed
Plaintiff files a statement of claim
Must include cause(s) of action from writ but may add further causes of action
Must describe facts underlying each cause of action named, who did what, when such things happened, and a summary of each head of relief sought
Registrar may reject any SoC for undue prolixity
Registrar may reject any SoC for failure to sufficiently and clearly state underlying facts of cause
Key principle: is it enough to cause a defendant to know what was done or alleged that they can either admit or deny it with their own knowledge, and not substantially more in a distracting or otherwise unhelpful way
Plaintiff serves statement of claim on defendant
Defendant is not obliged to file anything from here on
Each side has 6 months to provide complete lists of exhibits and witnesses, and make available for viewing, all exhibits they will present to the court at trial
No counterclaim process
Parties may agree or court may order or direct that 2 or more matters be heard in a single trial
No oral deposition/examination for discovery without consent
Parties may arrange this out of court by consent and a transcript may be an exhibit
Either party may call for mandatory mediation with a judge
All discovery and trial time limits and countdowns on hold between demand for mediation and end of mediation
Judge may give non-binding preliminary opinion on merits
Subsequent mediations may be called by consent of parties and leave of the court without affecting any timing
Parties serve each other exhibit lists, updated as needed
After 6 months from the date the statement of claim is served, no more lists may be served by either party except by consent or to correct immaterial slips and clerical errors
Must indicate in list how the exhibit is relevant, the date the exhibit was created or made known to the party, and if a document the # of pages and if an object the approx. size
May request copies or photos of anything, at requestor's cost
May challenge list in front of registrar, master or judge on grounds that one or more exhibits is irrelevant to the case, and order may be made that the list is struck in part or in whole
May apply for order of production of an exhibit that a party knows or has reasonable grounds to believe is in the possession of the other party or solicitor (including a copy) - must describe exhibit to allow other party to ascertain it, and explain what pleaded point the applicant believes it proves or disproves
Implied undertaking that this is all for this litigation only
Parties serve each other witness lists, updated as needed
Subject to same time limit as exhibit lists
Must indicate contact information and brief summary of facts the party intends to have that witness depose to
Implied undertaking that this is all for this litigation only
Set Trial
Trial date must be set to a date that is within 6 months of the deadline for serving all exhibit lists, or the service of the plaintiff's final exhibit list, whichever comes first, provided that no trial date may be earlier than 1 month after the deadline for serving all exhibit lists except by consent
Plaintiff's final exhibit list must be signed by both sides for this trial deadline to have effect and the plaintiff may not serve any subsequent list
Plaintiff's final exhibit list is effective upon a fully signed copy being filed with the court
Upon the deadline for serving all exhibit and witness lists, each party must file its final lists with court (these do not need to be signed by both sides)
If parties fail to agree on a trial date, a motion may be made for a court ordered trial date or, if the defendant can show that the plaintiff is the only cause of an unreasonable delay, the court may at its discretion dismiss the claim
Once a trial date is set, or contemporaneously with the setting of a trial date, either party may without notice apply for an order requiring that the employer of any witness, or the school in which the witness is enrolled, allow that witness to take time off without any sanction or penalty whatsoever to testify on the scheduled trial date or any other date as the court may order or direct
At Trial
Unlisted exhibits are inadmissible and unlisted witnesses may not testify, except with leave of the court
Subject to any other rule of evidence, the court must, absent a clear reason not to do so, admit into evidence a reasonably reliable copy of a lost or destroyed original document, a photograph of a lost, destroyed, perishable or unavailable object, or the testimony of a witness who intends to depose what was originally intended to be deposed by a listed witness who has become for any reason incapable of giving that testimony
The court shall not consider the contents of lists at trial except to help the court determine whether certain other evidence is to be admitted, and the description of a listed item has no effect other than identifying the item
The court may make any order allowed by law whatsoever at the conclusion of the trial, provided both sides have had a chance to present the underlying facts
If a claim for relief is pleaded and not dealt with by court order within 1 year of the conclusion of the trial, it is conclusively deemed to have been dismissed, without any effect on any costs already ordered
The court may impose a tariff
Court discretion as to costs otherwise
A party has 10 business days to apply by desk order for leave for the trial court's reconsideration on a material error of law or a finding of fact not evident on the record, or judicial notice of something for which evidence can be produced to the contrary
The court may refuse leave, allow leave and set a hearing date, or allow leave and give the parties time to provide written submissions (and new evidence in the case of an error of judicial notice)
Appeal countdown begins upon the end of this deadline if no leave is given for reconsideration, or the decision at the end of the reconsideration
Parties may go straight to appeal without reconsideration
Parties may not begin appeal proceedings if there is an outstanding reconsideration or leave application, and the trial court must not reconsider a decision under appeal