Canada: MONOJURIS: Thoughts About The One Judge Model

MONOJURIS:

Thoughts About the One Judge Model

One Singular Sensation?

The one Judge model presents both opportunities and challenges. The opportunities presented revolve around the axes of greater efficiencies (including in scheduling), and creating a more interventionist case management environment, where consistent and proportionate oversight and follow up by the same Judge can facilitate a process and outcomes that should be more accountable, less complex, less expensive, more predictable, and in the final analysis, lead to speedier resolutions and greater access to justice. Conversely the challenges inherent in a true one Judge model revolve around the axes of education, temperament, rigidity, the development of common law and paradoxically, increased potential risk of delay.

With special thanks to Chief Justice Joyal, this brief paper will touch on some of the issues involved in the one Judge model from the perspective of one family lawyer. It is not intended to be exhaustive.

Identifying the One Judge Model and Certain Attributes

There is no singular view of the form and substance of the one Judge model. There are various iterations and differences between one Judge models each with their own pros and cons. In its purest form, the one Judge model is a one stop shop where one Judge deals with all aspects of a matter from procedural to settlement discussions, and failing consensual resolution, adjudication.

Certain jurisdictions however appear to have what one might call the exceptional one Judge model. That is, they have a system where one Judge might hear all motions, pre-trial procedures, and trials; however if there are to be detailed settlement discussions and caucusing, a different Judge is deployed for that purpose such that the one Judge model effectively becomes a two Judge system.

Done right, a true one Judge model may well improve efficiencies. Having one Judge from start to finish should increase familiarity with the facts, legal issues, the people, and the stakes involved. In the right environment and in the right hands, familiarity, rather than breeding contempt (as the saying goes) should bring certainty, and practicality. That in turn may have positive effects on scheduling, while reducing posturing and enabling faster resolutions. Positions that are weak or frivolous may well be weeded out sooner rather than later while principled disputes might find a faster path to resolution. This should be seen as a positive development in access to justice issues.

Should One Judge Hear Settlement Discussions, Caucus, and Potentially Deliver Dispositive Decisions?

On its face it might seem reasonable to bring in a separate Judge to have or to close settlement discussions in order to preserve the appearance of impartiality and avoid unnecessary and undesirable recusal motions should settlement breakdown; but is it required in all cases?

Judges have a long history of excluding and/or disregarding improper material in their deliberations in the most serious of contexts (such as excluding improper confessions in murder trials) and in somewhat less serious contexts (such as the inclusion of improper affidavit material) having done away in large part with expungement motions. Why should Judges be seen as incapable of ignoring settlement discussions if they are later called upon to render a decision in a contested context, provided appropriate and perhaps agreed upon parameters and safeguards are established beforehand?

There does not appear to be any reason to presume that where a proper foundation is laid in advance, the same Judge should or would be disqualified from the adjudicative process simply because they heard some settlement discussions. Judges are, and should be considered, capable of purging from their minds settlement discussions and deciding matters before them in a transparent fashion based upon proper material and the law irrespective of settlement positions that may have been taken earlier in the proceeding. What must be avoided are situations where a party might enter or emerge from such a process without clearly knowing the ground rules in advance and understanding that any adjudicated result is not related to settlement positions that may have been taken.

Accordingly the one Judge model does not mean that settlement conferences, even those involving caucusing must, by definition, be downloaded to another Judge. There is no reason that a Judge could not give a fair early neutral evaluation of the case subject to what evidence actually comes before them.

In a pure one Judge model, provided that the ground rules are set out and understood (perhaps even agreed upon) by the participants in advance, as one might see in a mediation/arbitration, there is no reason to think that settlement discussions could not be facilitated but if they fail, a determination made on the basis of the actual evidence (as opposed to discussion in the settlement phase). That will however require specificity as to process, an accepted framework, education, and caution in word choice and demeanour.

It is noteworthy that in mediation and arbitration the same person may conduct the mediation and the arbitration, albeit separated in time. There does not appear to be any objective reason to think that a similar process could not occur in a one Judge model.

The question however is whether Judges will be seen to be able to do that or if there is something unique about the Judicial office itself that, unlike in mediation/arbitration, recommends against such an approach. Agreement upon, and understanding of, the process in advance combined with openness in approach among all stakeholders should prove to be an effective antidote against concerns in this regard such that there does not appear to be any real basis for a prohibition on utilizing a one Judge model to settle but if necessary adjudicate appropriate disputes.

Cautions Going Forward

It is trite to note that it is critical that the delivery of justice is seen as fair and above reproach. In a one Judge model extra attention must be paid to the conduct of settlement discussions that inevitably arise in some manner (and to some degree are mandated).

The Canadian judicial counsel published Ethical Principles for Judges some years ago (now under review). The purpose of that document was to provide ethical guidance for federally appointed Judges.

One of the principles in the guidebook is impartiality. The Guidebook provides that "judges must be and should appear to be impartial with respect to their decisions and decision-making". The principles associated with that statement include notions such as:

• Judges ensuring that their conduct in and out of court maintains and enhances confidence in their impartiality;
• The appearance of impartiality should be assessed from the perspective of a reasonable, fair-minded, and informed person;
• While acting decisively and controlling process, Judges must treat everyone before them with appropriate courtesy.

Impartiality connotes the absence of bias actual or perceived. It is trite but true to note that a reasonable perception that a Judge lacks impartiality is damaging to the judge, the judiciary, and the administration of justice as a whole. The starting position is always that Judges are impartial, are not biased, and take their oaths very seriously. The implementation of a one Judge model should not be taken as a basis for bringing unnecessary and distracting recusal motions. Discussion of settlement positions does not, and should not, in and of itself, lead to recusal requests.

Having said that, in a true one Judge model, where the Judge will hear, or potentially hear, case conferences (settlement related interests and positions) and motions, substantive and procedural, as well as trials, all stakeholders must be careful to ensure that the parties themselves understand (and perhaps agree to) the process so that there is no (or little) risk of a perception of a lack of impartiality. In the one Judge model, members of the Bar and Bench must take extra care to ensure that reasonable grounds for such perceptions are avoided which necessarily involves client education.

Counsel will need to do a lot work with their clients before appearing before any Judge in a one Judge model (in instances where parties appear). Although parties may not appear at various stages on the civil side, in the family division the parties do generally appear. Where parties are present, their demeanour and character will take on extra importance, as there are no fresh judicial eyes dealing with the case.

In a situation where the Case Conference Judge does not have decision-making power there can sometimes be advantages in letting the client hear the impact of their words and actions on the decider. This can assist later in helping get the client to a reasonable settlement position.

In a one Judge model however that strategy can have serious consequences. This is especially true where the client is not properly prepared and may not know what to expect or appreciate the consequences of their words and actions. Counsel therefore have a critical role to play in educating themselves and their clients as to process and expectations.

Thoughtfulness and training for all involved in such a process are essential factors if not pre-requisites to the effective use of a one Judge model. We are all not created with the same natural skills in all areas. Different people bring different skills and experiences with them. Accordingly, appropriate education will be important to optimize a one Judge model.

One of the efficiencies emanating from the one Judge model is judicial familiarity with the facts and the players. Absent proper advance education and understanding (if not agreement) however, that familiarity may lead to serious problems including the potential for erroneous perceptions of bias.

Care must be taken by counsel and the Court to avoid any situation of perceived bias based upon past interactions. Perhaps the optimal way to achieve that is to build the framework of such a model in advance, including ensuring that there is a clear understanding of expectations and format.

Off-the-cuff statements, whether they be about the process, the Court, or other un-nuanced remarks about litigants, witnesses, evidence, or the players (as opposed to nuanced commentary which should be encouraged and is worth the price of admission), can have negative effects (including on the appearance of impartiality and on the efficacy of the process). They should be avoided in any model but especially avoided in the one Judge model.

In a one Judge model, much as counsel (and parties where they are present) must be careful in how they advocate and appear, at all times knowing that one and the same Judge will be dealing with all aspects of the matter, all stakeholders must be cautious in what is said and the manner in which it is said. To do otherwise would risk treading into unnecessary and unfortunate territory.

Temporal Considerations

In a one Judge model the timing of settlement conferences will have a bearing on the content of discussions that may be had at such conferences. Temporal factors will impact the optimal approach to be taken. For example, it may well be that what is appropriate commentary from any of the stakeholders after all the evidence is in may be quite different than what might be appropriate at a different stage of proceedings.

In the one Judge model, balancing the different approaches to be taken at different times in the settlement and adjudicative stages of a file is critical. For example, from the perspective of the "decider" (to use President George W Bush's terminology in another context) there may be very good reason to order substantial costs or otherwise admonish or sanction a party or, in the rarest of cases, counsel. Having issued such an admonishment however, settlement might become more challenging and raise other issues. On the other hand permitting ongoing conduct that is less than what might be expected without sanction might well be taken as a tacit license to persist in such conduct or see it worsen. Balance and agreement in advance as to process and the timing of different stages in the process are therefore critical.

Settlement Positioning

Counsel will need to carefully consider if, how, and when they present settlement offers in the one Judge model. There is some question as to whether settlement offers would be appropriate to be put before the Judge before a decision is made at all. Once again, agreeing on the process in advance should address any concerns at the front end while still obtaining the benefits of the one Judge model.

If the goal is to end the litigation early, then perhaps counsel should consider putting their most generous settlement offer forward in the one Judge model. It would of course appear to the client to be difficult (and may in fact be difficult) to walk that back in a contested proceeding.

If one side or the other has a litigation advantage for whatever reason, then counsel will need to consider evidence that is likely to come into play and their prospects of success in putting forth any settlement position at all. That will need to be weighed in deciding the best way to proceed in settlement discussions in the one Judge environment.

A Thought About the One Judge Model and Appeals

Finally, it may be that if a true one Judge model is implemented generally, the Court of Appeal might be asked to play a somewhat different role than previously has been the case (especially in the initial stages of implementation). Among other things, it may be worth pondering whether the standard of review might be affected by a wholesale change to a one Judge model.

In such a scenario query whether the policy considerations underlying current standard of review principles might be impacted by a change to a global or specific one Judge model. Having raised the issue, using Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII) as a guide suggests that the answer is likely no.

Still, it may be worthwhile to consider whether the implementation of the One-Judge model might open new avenues for argument on appeal especially where the model does not live up to its promise whether in general, or in specific cases.

Conclusion

There are obviously potential contradictory forces to be considered in deciding to make use of a one Judge model. At the end of the day, a system of Justice that rewards those who take reasonable informed positions and try to resolve disputes expeditiously (assuming a relatively even playing field and an absence of disabling factors), and censures those who take unreasonable and ill-advised positions, is desirable. The one Judge model does or can do precisely that in an efficient and effective manner.

There are certainly potential advantages in having a one Judge model, but there are also potential disadvantages. There is no one size fits all judicial model. Some disputes may lend themselves more to a pure one Judge model than others. Creating a multi-layered menu of options for the delivery of justice (to the extent that resources permit) must be seen as positive development in the law.

Where a one Judge model would help in promoting certainty and rewarding reasoned informed positions, and where the file and parties are ripe, it would seem that enabling a one Judge model in appropriate cases, in an informed and agreed upon manner, would have significant potential benefits in the delivery of justice.