The Report of the Civil Justice Reform Working Group

by Chief Justice Donald Brenner and Deputy Attorney General Allan P Seckel QC

“Too expensive, too complex and too slow.” These are the words used by many members of the public and litigants of all types in British Columbia to describe the present civil justice system. While the system has many excellent features, maintaining the status quo is not an option; fundamental change is necessary.

Exploring such fundamental change for all types of non-family civil matters was the mandate of the Civil Justice Reform Working Group (CJRWG), formed in September 2004 by the Justice Review Task Force. As co-chairs of the CJRWG we worked with the other members (noted below) to develop a vision that provides everyone, regardless of their means, with access to effective and affordable civil justice through two broad strategies:

• Providing integrated information and services to support those who want to resolve their legal problems on their own before entering the court system; and
• Providing a streamlined, accessible Supreme Court system where matters that can be settled are settled quickly and affordably and matters that need a trial get to trial quickly and affordably.

Our work was informed by five key principles:

• Preservation of the rule of law
• Proportionality, which means that the amount of process will be proportional to the value, complexity and importance of the case
• Flexibility and matching of process to the dispute and needs of the parties
• More active judicial involvement in the management and resolution of cases
• An expanded role for lawyers in helping their clients arrive at just solutions for their legal problems.

We conducted extensive research into reforms locally and abroad. We found remarkable consistency in the trends and concerns in all jurisdictions relating to the deteriorating effectiveness of their civil justice systems. While we found a wide variety of proposed and implemented reforms to address those concerns we knew that the reforms we recommended must be suited specifically to the unique B.C. milieu. We gave broad opportunities for input and invited comments and suggestions from the B.C. legal community, business community and the public. We received over 40 written submissions and inquiries, each of which provided great assistance in the CJRWG’s deliberations. We participated in the “Restructuring Justice” conference in June 2005 which provided an excellent opportunity for learning and dialogue on these important issues. Probably the most memorable part of that conference for many people was the Client Panel during which representatives of large business, small business and individual litigants provided their assessment of the present system. Their feedback was sobering and supported the need for swift and fundamental change.

Our report was unanimously approved by the Justice Review Task Force in October and released in mid-November 2006. It is available online at www.bcjusticereview.org. The CJRWG’s report provides three key recommendations:

1. Introducing a “hub,” a single place where people can go to get the information and services they need to solve legal problems on their own.
2. Requiring parties to Supreme Court civil non-family actions to personally attend a case planning conference (CPC) before they engage the system beyond initiating and responding to a claim.
3. Rewriting the Supreme Court Rules.

Our third recommendation incorporates a number of reforms of particular interest to B.C. Supreme Court litigants and litigators including:

• Proportionality: An explicit overriding objective that all proceedings are dealt with justly and pursuant to the principles of proportionality
• A new case initiation and defence process which state the facts and the issues in dispute and to provide a written plan for conducting the case and achieving a resolution
• Limits on both oral and documentary discovery:
  • eliminating interrogatories
  • requiring the parties to produce only those documents:
    • referred to in the party’s pleading
    • to which the party intends to refer at trial, or
    • in the party’s control that could be used by any party at trial to prove or disprove a material fact
  • for cases valued at $100,000 or less, absent leave or consent, eliminating oral discovery
  • for cases valued at greater than $100,000, absent leave, requiring each party to be available for oral discovery by all parties adverse in interest for a maximum (in total) of one day (the parties may consent to one additional day of discovery)
  • requiring the parties, by a date to be set at the CPC, to exchange “will-say” statements.
• Restrictions on expert evidence:
  • adopting a new rule to establish an overriding duty of an expert to help the court on the matters within his or her expertise and requiring the expert to certify (in the expert’s report) that he or she is aware of and understands this duty
  • requiring the parameters of expert testimony to be discussed at the CPC and requiring the CPC judge to provide directions, based upon proportionality principles, on the use of experts
  • unless otherwise ordered, in cases valued at $100,000 or less, limiting each party to one expert only, plus one expert to rebut the evidence of the opposing expert, if necessary
  • requiring experts who give evidence in the proceeding to disclose only the facts, including test results, upon which they relied in forming their opinion.

These are only highlights of the recommendations. We invite you to carefully review the entire report and provide us with your comments and suggestions.

There are a number of ways in which you can learn more about these recommendations and provide your input:

• Local Sections of the CBA, B.C. Branch, will be featuring members of the CJRWG at upcoming meetings
• The first such meeting is for members of the Vancouver ADR and Civil Litigation sections to be held on Tuesday, December 12, 2006 at the Law Courts Inn from 12:30 p.m. - 2 p.m. Contact Esterina Dragan at 604-687-5744
• The business community will be sponsoring discussion sessions at several Chambers of Commerce around the province. Contact your local Chamber of Commerce for more information
• You can provide written comments to us via e-mail to civiljustice@bcjusticereview.org or by mail or fax to:

Dispute Resolution Office
Ministry of Attorney General
P.O. Box 9222, Stn. Prov. Govt.
Victoria, British Columbia V8W 9J1
Facsimile: 250-387-1189

We look forward to hearing from you.

Chief Justice Donald Brenner, Supreme Court of BC (Co-Chair)
Deputy Attorney General Allan Seckel, QC (Co-Chair)
Madam Justice Laura Gerow, Supreme Court of BC
Master William McCallum, Supreme Court of BC
Judge Dennis Schmidt, Provincial Court of BC
James D Vilvang, QC, Canadian Bar Association, BC Branch
Richard S Margetts, QC, Law Society of BC
Helen Pedneault, Assistant Deputy Minister, Court Services Branch
Carol McEown, Legal Services Society
George Macintosh, QC, Farris & Company, Member at Large
Barbara Young, QC, Berge Horn, Member at Large
Craig P Dennis, Sugden, McFee & Ross, Member at Large

This article was published in the December 2006 issue of BarTalk. © 2006 The Canadian Bar Association. All rights reserved.