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New Directions for the Board in Case Management and Early Dispute Resolution
October 26, 2002 paper Appendix A Appendix B Appendix C Appendix D Appendix E

APPENDIX "B"

ECB/BCEA LIAISON COMMITTEE ON
EARLY DISPUTE RESOLUTION

Preliminary Report of the
Case Management Subcommittee

August 19, 2002

The Case Management Subcommittee met by teleconference on July 18 and July 29, 2002. Because Mike Grover was out of the country, Sharon Walls took his place on the Subcommittee, the other members of which are Richard Crosson, Fran Crowhurst, and Bob Shorthouse.

1. Comment on the Current Process

The Subcommittee first reviewed briefly the steps involved in bringing a compensation claim before the Board. While the Act and the Practice and Procedure Regulation appear to contemplate an expedited process, the actual timeframe tends to be much longer.

The Subcommittee also looked at the Board's current case management practice. It was observed that there is no consistency in the current practice, and that case management conferences still often seem to be convened only when the parties request them. The greatest drawback to many of these conferences is the lack of mandatory direction or follow up to ensure that there has been compliance with whatever the parties may have agreed to. They have often been treated as non-binding, "without prejudice" discussions.

2. Design of the New Process

2.1 How Mandatory Should the Process Be?

It was generally recognized that flexibility is needed in the design of an effective case management system for the Board. Smaller, simpler cases scheduled for perhaps 2 or 3 days normally will not require intensive case management whereas longer, more complex cases scheduled for several weeks require closer monitoring. One suggestion was to follow in principle the Supreme Court model, which uses mandatory case management for cases scheduled for more than 19 days and case management only at the request of the parties for shorter cases. However, it was also noted that this distinction is made necessary, in part at least, by the heavy docket of cases in the Supreme Court, a situation which is quite different from that facing the Board. Another difference between Supreme Court trials and Board hearings is that liability is often not in question in a Board hearing. Also, Board hearings are often more heavily weighted toward expert than lay evidence. As such, case management of a complex loss evalution case might be useful even though it is expected that the hearing would be of shorter duration.

The nature of the claim will also to a significant extent determine the timeframe for bringing cases on to hearing before the Board. In particular, where the case involves complex business loss claims, it may be 2 or 3 years after the taking before the parties can assemble and evaluate the necessary evidence.

2.2 When Should the Board Become Involved?

The foregoing considerations have a bearing as well on the stage at which case management by the Board should commence. Cautions were expressed about the Board intervening too early, and in a sense "over-managing" before the parties have a realistic chance to assess their cases and the lead time they require. There is the potential for running up unnecessary costs and making the entire process too expensive. The earliest point of intervention would be once the parties have exchanged their pleadings, but even then it may be desirable to wait until the point at which the matter is set down for hearing. With business loss claims, it may only be within the final 6 months prior to the scheduled hearing that case management becomes particularly useful.

2.3 How Should Deadlines Be Set?

To the extent that the Board undertakes case management in individual cases, there was general agreement that deadlines should be imposed for various key steps in the pre-hearing process, including exchanging lists of documents, holding discoveries, exchanging expert reports, and amending pleadings. The deadlines should be "generous" but also binding upon the parties, giving more rigour to the process. Professionals tend to work best toward fixed deadlines. Deadlines for providing particulars and discovery should be set at an earlier stage in the pre-hearing process than is often now observed so that the cases to be met are identified well in advance of the hearing and the experts have access to the information they require. The current regulation governing service of expert reports 30 days in advance under the Evidence Act should be amended to provide for earlier exchange of such reports.

A particular case management tool which the Board may wish to consider adopting is a mandatory pre-hearing conference, patterned after the pre-trial conferences in the Supreme Court. These are held 30 to 60 days before a scheduled trial in every case and are designed to ensure that the parties are, in fact, ready to proceed. They are not in the nature of settlement conferences.

There was some discussion around whether the Board should have the power to dismiss a claim for "want of prosecution" by the claimant or, in effect, to award "default judgment" where the respondent has failed to file a reply. It was agreed that these are drastic remedies available in the courts only when strict tests are met, and that their adoption by the Board would almost certainly require legislative amendment.

2.4 How Should Applications for Adjournment Be Treated?

If the foregoing practices are adopted, the Subcommittee considers that late adjournments, which frequently are the result of one or other of the parties not being ready, should become the exception. The view was also expressed, however, that the parties should be accorded considerable leeway with respect to consent adjournments.

2.5 How Should Case Management Directions Be Enforced?

The Subcommittee was of the view generally that a case management system can only be effective if there are some mechanisms available for enforcing attendance at conferences and compliance with directions given. It was felt on the one hand that, for example, being precluded from leading evidence where there has not been compliance with disclosure deadlines might be too draconian. On the other hand, costs consequences might be more appropriate. Several suggestions were made, including (a) amending section 47 of the Act to include cost as well as interest penalties for causing unreasonable delay in proceedings; (b) allowing a respondent's costs with respect to one or more steps in a proceeding to be awarded against a claimant; and (c) amending the general entitlement to costs provision under section 45 of the Act.

2.6 How Should the Costs Involved Be Dealt With?

With respect to the costs of case management or pre-hearing conferences themselves, the Subcommittee reviewed the Tariff of Costs Regulation and observed that there are no items which properly address such costs. It would be appropriate to add such an item, particularly where there is flexibility built into the case management system and some recognition of risk with respect to costs for parties who conduct themselves inappropriately.

2.7 Should the Parties Themselves Be Present?

The Subcommittee was of the view that the parties themselves, as well as their legal counsel, should be present at case management and pre-hearing conferences. This would ensure that the parties themselves are more engaged in the process as well as being informed as to what is going on.

2.8 What Restrictions Should Apply to Board Members?

There would seem to be no significant impediment in the way of having the Board member who conducts case management or pre-hearing conferences in a case sit later sit on the panel hearing the case, provided that these conferences are not conducted on a "without prejudice" basis, are not settlement conferences, and are not considering evidence. This would also seem to apply to having the member hear interlocutory applications in the matter. Some inquiries will be made as to how these matters are dealt with in the court system.

October 26, 2002 paper Appendix A Appendix B Appendix C Appendix D Appendix E
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