Chapter 9: Managing the Process

• Pages: 245-267
• Author: Janet Walker,Lorne Sossin,Erik S. Knutsen,Gerard J. Kennedy

CHA PTER 9

MANAGING THE

PROCESS

A. INTRODUCTION

There are more disputes seeking resolution in Canadian courts th an

ever before. Trials take longer and are more expensive and the number

of disputes reaching adjudication is decl ining. In the face of very lim-

ited judicial resources and a widely recognized access to justice cr isis,

the judicial role is changi ng to include an en larged set of tools for mak-

ing trial s fairer, more accessible, and more efcient.1

The conventional approach to civil litigation is that it is a process

initiated and man aged by the parties acting autonomously. Where pro-

cedural disputes ar ise, or ultimately on the merits, the courts function

simply as decision makers. Bec ause of the unacceptable delays and un-

sustainable costs a ssociated with civ il litigation under this model, the

conventional approach is under siege. Increasingly, civil justice reform

features a more signicant role for courts in m anaging the litigation

process, determining whether and when procedural disputes will be

resolved, and keeping the parties on track for timely and efcient liti-

gation, with off ramps to facil itate settlement at various stages of the

litigation process. This shift h as involved courts moving beyond the

simple adjudication of trials and motions to serving as a clear inghouse

See Jula Hughes and Ph illip Bryden, “Implication s of Case Management and Ac-

tive Adjudication for Judic ial Disqualicat ion” (2017) 54 Alberta LR 8 49.

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CIVI L LITIGAT ION

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for a broad range of dispute resolution, from facilitating mediation and

settlement, to more efcient and effective management of litigation.

In this chapter, we canvass several ways in which courts play a key

role in facilitating settlement and m anaging the civil litigation process,

including: (1) case management and pre-trial conferences, (2) court

connected mediation, (3) overseeing settlement, and (4) the growt h of

online dispute resolution.

1) CASE M ANAGEMENT AND PRE-TR IA L

CONFERENCES

One of the most consistent trends in civ il litigation reform involves

greater judicial control over, and involvement in, the litigation process.

The goal of judicial control is rst and foremost to facilitate the efcient

and fair resolution of disputes, either th rough settlement or a trial.

However, there is also an important acces s to justice rationale emerging

for case management, which has t wo prongs: rst, case management

ensures that t he parties to litigation can h ave their dispute adjudicated

without costly and unnecessary delay arisi ng from motions and other

procedural obstacles; and second, case management ensures that dis-

putes do not take disproportionate resources away from other parties

who need them. Case management, in other words, focuses both on the

parties to a dispute and on broader questions of judicial economy and

proportionality in the al location of scarce court resources.2

The case management system is best understood as an intervention

in the default model of party autonomy. Without case management, a

party who is faced w ith overly aggressive or overly passive conduct by

an opposing party would be requi red to engage in the cumbersome and

expensive process of bringing a formal motion either to move the pro-

cess along or defend against steps being t aken before a party is prepared.

Case management exi sts to promote the smooth progress of an action

through the various steps of pleadings, pre-trial discovery, motions and

the trial. Case management also offers more opportunities for the early

resolution of a dispute, either through settlement or through facilitat-

ing and scheduling summ ary proceedings — for example, a motion to

determine a key issue in t he dispute or a motion for sum mary judgment.

Case management generally t akes place through the mechani sm

of case conferences throughout the litigation process. Pre-trial con-

Suzanne Chio do, “Tak ing Proportionality Se riously: A Countercultural Ap -

proach” (2025) 16 Weste rn J of L Stud 19.

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