Canada: Court Suspends Enforcement Of Mandatory ADR Rules

On February 12, 2013, the Court of Queen's Bench released a memorandum announcing that it will not enforce the mandatory dispute resolution Rules "until such time as the judicial complement of the Court and other resources permit reinstatement."

Since their introduction in November 2010, the mandatory dispute resolution Rules (8.4(3)(a) and 8.5(1)) imposed an obligation on all parties to participate in at least one dispute resolution process before the Court would allow the matter to proceed to trial. Those processes included:

  • a dispute resolution process in the private or government sectors involving an impartial third person, such as mediation;
  • a Court annexed dispute resolution process;
  • a judicial dispute resolution process ("JDR"); or
  • any program or process designated by the Court.

These processes are without prejudice, which is to say, the parties are free to speak their minds in the resolution conference and what they say cannot be used against them in any subsequent court proceedings.

Viewed through the lens of the foundational rule, the mandatory dispute resolution Rules were originally intended to encourage the parties to identify the issues in dispute, and to facilitate early and effective communication between parties. As Mahoney J. noted in IBM Canada Limited v. Kossovan, 2011 ABQB 621, even where a pre-trial dispute resolution does not settle the entire lawsuit, the Court believes that participation in the process can prove useful in narrowing the issues and thus provide quicker, cheaper access to justice.

The above-noted processes are intended to be much different from what one experiences at trial. At trial, the situation is adversarial by design: parties are expected to hold firmly to their version of events, and to emphasise their theory of the case while minimizing the opposing evidence, all in an effort to convince the Court their case should prevail. By contrast, in a JDR or private mediation the parties are encouraged to give and take and to compromise as a means of resolving the dispute in a manner that each can accept.

One of the benefits of pre-trial dispute resolution processes is that the parties are not obligated to reach a resolution. Whether or not a deal is made is up to each party. This is, of course, in contrast to how resolution happens at trial, where a Justice hears the evidence and arguments and renders a decision binding on both parties. While most often a trial results in one party liking the decision ("winning") and the other not liking it ("losing"), there are also instances where both parties leave feeling unhappy. By contrast, in a dispute resolution procedure, the parties can reach an agreement that is crafted by them. While neither party may be completely satisfied with such an outcome, the end of their dispute is achieved in a manner they can both agree upon.

JDRs have been available in the Court of Queen's Bench long before these new Rules came into effect, and used to be relatively easy to schedule. However, since the introduction of the mandatory dispute resolution Rules, demand for JDRs has far exceeded available judicial resources. To manage the increased demand for JDRs, the Court of Queen's Bench administrators adopted a system where they pre-announced when the JDR dates over the next few months would become available for booking. One could attempt to obtain the desired booking on the day the bookings were made available.

Even with the new system, many litigants could not obtain a timely JDR date – the situation became much like the rush to buy tickets for a hot event—you could apply as soon as the tickets went on sale and still miss out on the show.

As a result, parties have found themselves waiting several months for a JDR or squabbling with each other over who would foot the bill for a private alternative dispute resolution process. Issues arose where one party to a dispute was willing to pay for a private mediator, while the other party was not. This added delay and expense to an already slow and expensive litigation process.

How long it will take the Court to build up the resources it needs to meet the demand for JDRs is uncertain.

Interestingly, the Court's memorandum announcing the suspension of the dispute resolution Rules was released just days after the Minister of Justice and Attorney General of Canada announced the appointment of four judges to Alberta's Court of Queen's Bench to replace transferred and semiretiring judges. Implicit in that announcement was that the Federal Government will not be adding to Alberta's judicial complement anytime in the near future.

That announcement came as a disappointment to those hoping the Federal Government would take the opportunity to respond to Alberta's ongoing pleas for additional judges, pleas that have gone unanswered since the last increase in 1996. It is likely that among those particularly disappointed by the announcement is Court of Queen's Bench Chief Justice Neil Wittman who has been actively campaigning for an increase to the judicial complement. The Chief Justice submitted a report to the Federal Government formally requesting additional judicial resources and in November 2012 told QMI Agency that the system is being overburdened by the fact Alberta has fewer per-capita judges than any other province or territory. "That measurement, in and of itself, is quite telling," said Wittmann, "We are the most under-represented in the country."

Alberta's Justice Minister Jonathan Denis has echoed the Chief Justice's concerns. In November 2012, he tabled a July letter he wrote to his federal counterpart, Rob Nicholson, asking Ottawa to appoint four additional judges to Court of Queen's Bench:

"Alberta's population has increased by over one million people since the last increase to the court's complement in 1996, leaving us with significantly fewer superior court judges per capita than any other province."

Until the Court has the resources to meet JDR demand, parties may enter matters for trial without complying with Rules 8.4(3)(a) and 8.5(1). Parties who are otherwise ready for trial should request a trial date promptly, before the backlog of cases awaiting JDR turns into a backlog of cases awaiting trial. Similarly, parties who, for whatever reason, do not wish to participate in a dispute resolution process, should make every effort to ready themselves for trial before the judiciary reinstates the requirement.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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