Delivered as a seminar for the Canada-China Judicial Education Project, June 9, 2000.
"Justice delayed is justice denied". This old saying is as important today as it was a century ago. The court system must be ever vigilant to ensure that perceived short term gain for some litigants using new twists and turns does not result in a diminution of justice in the long run for those who are prepared to abide by the letter and the spirit of the law. The integrity of the justice system is paramount.
Absent unusual circumstances which would have to be justified to the court, there is no reason why commercial litigation cannot be completed within 3 years of its initiation. Indeed I would think that the ideal average should be in the 1.1/2 year range. I make that observation fully acknowledging that there are commercial cases in our court system where counsel on both sides have engaged in deep pocketed litigation with the result that the cases are still ongoing after 10 years.
What is required is a tested-by-experience standard as to how long it is reasonable to allow the litigants, as assisted by their counsel, to take the required steps leading to a trial. Everyone works to a deadline – but not to a deadline which is a movable one without appropriate justification to the court. The deadline has to be objectively reasonable to be workable. Subject to any limitation period the plaintiff is under no time constraint as to investigation for any preparation of its complaint. The defendant must have a reasonable time to deal similarly with its defence. In the case of multiple parties, longer still will be required, especially if there are claims over against others. Included in the defence time must be adequate provision for the defendant to locate and retain counsel, if such counsel is not already on retainer. Where the defendant is a foreign entity, a greater allowance must be made for retention of counsel (from a competent established and available bar) and the preparation of the defence. The pleadings should be in sufficient detail for the parties to readily recognize what is at issue and the general thrust of the evidence that will be relied on. Pleadings which slavishly recite standard form precedents with the plaintiff alleging a long list of irrelevant claims or the defendant providing unresponsive blanket details are to be strictly sanctioned. If the pleadings are not sufficiently detailed in part, then either side should be entitled to request "particulars". When this is completed, there should be a mechanism to identify and provide access to originals (with the additional provision of copies) of truly relevant material documents. Thereafter there should be provision for an examination by the party in opposition of at least one (perhaps more with the permission of the court unless the other side consents) representative of each side. This will allow the examining party to determine the specifics of the opposite case, particularly in reference to the documentation. Consideration could be given to requiring each side to provide "will say" statements for each of the witnesses it would propose to call at trial; such "will say" statement should give the general thrust of the testimony but refrain from giving exact details (otherwise too much time and effort will be wasted in attempting to fine tune this into the equivalent of extensive evidence at trial). Either side should be allowed to request the other side to admit or confirm various facts which reasonably should not be in issue; if this request is refused and it is thereafter demonstrated in trial that the admission/confirmation ought reasonably to have been given, then such conduct may be sanctioned by a costs award. The court may wish to consider providing the parties with access to a judge or master with a view to that judicial officer checking to see if the parties can agree on various issues and/or facts so that the agreement may be relied on at trial. Needless to say that throughout the litigation process, the court would expect and be entitled to demand that there be a continuous canvassing of the possibility of settlement of some parts or all of the lawsuit.
Finally, after a pretrial conference where the parties have access to a settlement judge (who would not be the trial judge and who would not discuss the merits of the case or the positions of the parties with the trial judge), there should be a meeting of counsel with the trial conference judge. The trial conference judge likely should be the trial judge if that is logistically possible. That judge should review with the counsel what the mechanics of the trial will be, how evidence will be presented (e.g. it may be that the witness will provide his evidence by way of an affidavit (or other written statement to be confirmed at trial in advance of the trial for review by the other side which should allow for focussed cross examination by either the opposite counsel in an adversarial trial or by the judge with the assistance of opposite counsel in an inquisitorial trial), and how long it is expected that the trial will take (including time for opening and closing statements and the individual times for each witness). Document briefs of the material to be referred to and relied on at trial should be provided to the judge in advance, preferably in compendium (i.e., extract) form with the relevant portions highlighted and page references marked on the cover page of each document. Frequently it will be desirable to have the statute, case law and legal writings in advance, similarly in such compendium and highlighted form. Indeed it may be preferable for counsel to provide their opening statement in writing to the judge in advance of the trial.
After the evidence has been completed, it may be appropriate to allow a short time (e.g., a week or so) for the purpose of allowing counsel to prepare their closing submissions, perhaps in writing. Not only will this allow greater focus of the evidence and the applicable law, but it may also provide the parties with the opportunity to settle once they see how the evidence has gone in during the trial.
I have previously mentioned masters; these judicial officers may be equated to a "junior" judge. To allow the judge to concentrate on the more difficult tasks including trials and summary judgments as well as pretrial conferences, the master would deal with procedural disputes and contentious court matters of a more routine nature and/or of lesser importance to the final result of the trial.
It is also important to ensure that counsel are recognized as officers of the court and in that capacity they are obligated to be responsible to the court as well as their clients.
Case management can take the form of the court adopting a "hands on" approach to selected cases with periodic joint reports to ensure that they keep on a reasonable track – usually a timetable agreed between the parties which is accepted by the court (in case of failure to agree, the court will direct what is reasonable in the circumstances). Alternatively it can take the general form of statutorily mandated time lines by which certain functions must be accomplished. In either case, a party in default risks having its side of the case dismissed or otherwise disregarded unless that party can convince the court that an extension is reasonably warranted in the circumstances. To facilitate monitoring of cases in the system, with or without either type of case management, the court will require computerized recording of its case load. This will assist with respect to ensuring that deadlines are met, filings are appropriately made and when filed they can be tracked so that they may be retrieved and to providing overall statistics of various nature so that the court may monitor the court’s own performance to ensure that standards are met. The court system will also require adequate resources to ensure that it can perform its tasks as to court filings, storage and retrieval, security, administrative, secretarial, record keeping for purposes of appeal, research, continuing education, maintenance of an appropriate record of the trial and other proceedings for the purpose of appeal, etc.
Scheduling of trials and other court attendances is always a difficult task. Litigation of any nature, but particularly commercial litigation, does not lend itself to a production assembly line approach. Each case will have its differences and unforeseen aspects. Then too there is the question of cases settling, often, perhaps far too often, on the eve of trial. Experienced counsel and competent court administrators/schedulors will be able to closely predict how long cases are likely to take and whether they are likely to settle and when. Ideally the court schedulor should be a person of acknowledged integrity so that counsel are confident to advise on a confidential basis their own view of whether a case will settle (note, this is the experience of the English Commercial Court). There must be a delicate balance of overbooking so that the court will have a continuous flow of cases to deal with at trial, notwithstanding any settlements. There must be sufficient slippage allowed for so that trials which go into overtime can be accommodated. If there is a gap with no available trial work, then one would assume that the judge would be able to attend to other judicial duties including the writing of judgments which are reserved so that these judgments may be released in a timely fashion. If there is a problem where settlements do not completely relieve the overbooking, then there should be flexibility in the system to accommodate those further trials which must go on as previously scheduled (especially if witnesses are coming from long distances or are reasonably unavailable otherwise for an extended period). Scheduling should aim at meeting committed targets.
A most important factor in achieving settlement in cases on a institutional basis is the availability of a judge and a courtroom. If the momentum of the court system is that court dates are met, then the system will work smoothly including a high level of settlements. If the momentum is negative, then the system will start to break down because of overload and backlog accumulation; cases will not settle; the public and litigants/counsel generally will lose confidence in the court system.
How does a judge deal with complex evidence and issues? Aside from the aspect of the commercial side of the court being manned by specialized judges who have experience directly in this area or who have continued to gain such by individual or group training, there are a number of ways of dealing with this. Firstly, one should always expect that the parties through their counsel will agree on or admit certain facts.
Then there is the question that the court may take judicial notice of certain facts without formal proof. The facts may be uncontrovertible. They are able to be accessed in a standard textbook accepted on a widespread basis by educational institutions without controversy (e.g., the laws of physics).
Additionally there is the aspect of business or government records which are maintained in the ordinary course and where there is no reason to challenge their authenticity or accuracy. The Evidence Act, on notice to the other side, allows these to be produced into evidence at trial without further proof.
Available, though infrequently used in Canada, is the ability of the judge to appoint the court’s own expert, usually on the basis that that expert be paid for by the parties in some fashion.
Then there is the aspect of the parties retaining an expert to provide the court with an explanation of and opinion of the evidence as presented. In Canada, the Supreme Court of Canada has established the guiding principles for the admission of such expert testimony: see R. v. Mohan,  2 S.C.R. 9. The four point test is that the evidence:
- must be relevant;
- necessary in assisting the trier of fact;
- not be excluded under any other exclusionary rule (e.g. hearsay); and
- be presented by an expert who is properly qualified.
The proper qualification of the expert comes first; the expert is allowed only to testify as to the area in which he is so qualified (in any other area, he is not an expert). The subject area must be one in which there is accepted scientific validity including peer review and confirmation; "real science" is acceptable whereas "junk science" is not). Increasingly in Canadian courts, we are experiencing experts who are being attempted to be qualified when they are nothing more than hired mercenary advocates (in one case that expert opines "x" and in the next, otherwise identical case, the expert opines "not x"). We require the experts to be neutral and objective. Counsel are reminded to caution their proposed experts in this regard.
I am of the view that Justice Cresswell in The "Ikarian Reefer"  2 Lloyd’s Rep. 68 correctly stated what the court is entitled to expect. His points were as follows:
- Expert evidence should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation.
- Expert witnesses should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within their expertise.
- Expert witnesses should state the facts or assumptions upon which their opinion is based. Witnesses should not fail to consider material facts which could detract from their concluded opinion.
- Expert witnesses should make it clear when a particular question or issue falls outside their expertise.
- If an expert’s opinion is not properly researched because the expert considers that insufficient data is available then this must be stated with the indication that the opinion is no more than provisional.
- If experts change their view on a material matter after reports are exchanged, then that should be communicated to the other side without delay.
- Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or similar documents, these must be provided to the other party at the time of the exchange of reports.
The English have gone even further with their Practice Direction on Part 35 introduced in 2000. I have no doubt that it will greatly assist the English judges. It reads as follows:
Part 35 is intended to limit the use of oral expert evidence to that which is reasonably required. In addition, where possible, matters requiring expert evidence should be dealt with by a single expert. Permission of the court is always required either to call an expert or to put an expert’s report in evidence.
Form And Content Of Expert’s Reports
1.1. An expert’s report should be addressed to the court and not to the party from whom the expert has received his instructions.
1.2. An expert’s report must:
- give details of the expert’s qualifications,
- give details of any literature or other material which the expert has relied on in making the report,
- say who carried out any test or experiment which the expert has used for the report and whether or not the test or experiment has been carried out under the expert’s supervision.
- give the qualifications of the person who carried out any such test or experiment, and
- where there is a range of opinion on the matters dealt with in the report -
- summarise the range of opinion, and
- give reasons for his own opinion,
- contain a summary of the conclusions reached,
- contain a statement that the expert understands his duty to the court and has complied with the duty (rule 35.10(2)), and
- contain a statement setting out the substance of all material instructions (whether written or oral). The statement should summarise the facts and instructions given to the expert which are material to the opinions expressed in the report or upon which those opinions are based (rule 35.10(3)).
1.3. An expert’s report must be verified by a statement of truth as well as continuing the statements required in paragraph 1.2(7) and (8) above.
1.4. The form of the statement of truth is as follows:
‘I believe that the facts I have stated in this report are true and that the opinions I have expressed are correct.’
1.5. Attention is drawn to rule 32.14 which sets out the consequences of verifying a document containing a false statement without an honest belief in its truth.
(For information about statements of truth see Part 22 and the practice direction which supplements it.)
1.6. In addition, an expert’s report should comply with the requirements of any approved expert’s protocol.
Unless the expert adheres to those standards, his opinion will be rejected.
The meeting with the trial conference judge will assist in determining whether any expert evidence will be needed or presented. Experts’ reports should be exchanged on a timely basis so that they may be analyzed and, if necessary, disputed. Frequently one finds that it is only certain elements in the opinion which are contested. Therefore it is helpful to require that the opposing experts meet before trial and discuss their points of difference. If they are not able to resolve these points, then they are required to jointly present them in chart/table form. This will assist the trial judge as he will be able to determine what the judge’s view is as to these contested points by forming his own opinion with the assistance of the experts and thus resolve the "missing" elements in the formula.
The Hon. James Farley, Q.C., is Senior Counsel at McCarthy Tétrault LLP.
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.