Canadian Lawyer

while creating challenges in ensuring the protection of clients and proper functioning of the legal system. Given the nature of technology, those challenges are not obviously linked to territorial jurisdiction. If legalzoom.com starts to operate in Canada, which law society regulates it? In an ideal world regulators would be able to shift their regulatory model to facilitate the growth of these changes while minimizing the dangers they present. Unfortunately that ideal world is unlikely to arise from a fractured regulatory system with limited resources and qualified legiti- macy. And it is that which opens the question for discussion: is it time for a national regulator of legal services? Alice Woolley is a professor of law and director of admissions at the University of Calgary Faculty of Law. If it's broke, fix it T he "it" in the title is the publicly funded Toronto version of Ontario's civil justice system. It is broke and we (judges and lawyers) need to fix it. Among the Toronto litigation bar, there appears to be a consensus that some systemic change is required. Some members of the judiciary share that view. Alan Lenczner's article "The Fix" and Justice David Brown's Law Society of Upper Canada paper "Sacred Cows and Stumbling Blocks: Whither Civil Procedure Reform" set out in clear language some of the existing problems. Both of these papers advocate wide-ranging procedural and systemic reforms. I recognize change is much easier to talk or write about than to implement. Indeed, as I observed in other circumstances, both judges and lawyers are somewhat resistant to change. Mark Twain put it well when he said, "I'm all for progress, it's change I don't like." Looked at in aggregate terms, non-family civil proceedings are subject to an institutional squeeze — there is a constitutional imperative to try criminal cases within a reasonable time (the Askov issue) and a social imperative to move family law cases (particularly those involving children) through the system to trial with dispatch. In the end, civil matters (actions, applications, motions for the most part) are caught in the middle. This, in part, presents all the more reason to strive for solutions that will increase the efficiency of the civil justice system that are cost effective — or better still costless — and will not compromise fairness and justice for those involved in litigated matters. For now I leave family law out of the equation. It has its own problems. Fortunately these problems have been recognized at least by the bar and provincial governments. Something has to give Whether or not lawyers and judges embrace change with genuine enthusiasm, I think it is fair to say the judiciary and the litigation bar recognize something has to give. There must be meaningful change in the way we conduct business in the civil courts. Many have observed, and I agree, that the publicly funded civil justice system could benefit from the experience and increasingly popular and privately funded alternate dispute resolution (arbitration) system. Arbitration has considerable benefits at least some of which in my view could be incorporated into the civil litigation process. One of the principal reasons for the increasing resort to arbitrations is the ability of the parties to select the adjudicator. That is an aspect of arbitration that is not easily transferable to civil litigated matters. But once appointed, the arbitrator deals with all matters (scheduling, motions, etc.) that may arise in the arbitration. That is an aspect of arbitrations that is transferable to the civil justice system. Just as the early appointment of the arbitrator leads to efficiency benefits, the early designation of the trial judge, in my view, will lead to a less costly and quicker process. Among other things there will be fewer flimsy motions in light of the fact the judge hearing the motion will be the trial judge. In addition, that judge will be familiar with the case and he or she should therefore be able to dispose of interlocutory matters more quickly than would otherwise be the case. Lastly, the trial judge, if designated early in the process, can customize the process for both interlocutory and trial purposes. Motions in writing (including summary judgment motions), limits on submission length, witness statements, or affidavits, and their use at trial are just some of the matters the designated trial judge can manage and control if involved early in the process. As to timing, it seems to me that the designation of the trial judge should occur once an action is defended. There is no purpose in committing resources to matters that will turn out to be undefended. The early designation of the trial judge must lead to the early provision of a trial date after consultation with counsel, or a selfrepresented litigant. This is what occurs, almost invariably, in arbitrations where relatively early in the process counsel (sometimes with the parties) will meet with the arbitrator to discuss the framework for the arbitration. One of the agenda items will be the hearing dates. The trial date will be selected with the advice of counsel or the parties, and frequently on consent. In any case, it will be understood the selected trial dates will be assigned on a noadjournment basis and will take into account the time required for all required interlocutory proceedings, production issues, and discoveries. The above process will work effectively only if the judge involved is the trial judge who will be responsible for all matters other than the pre-trial and other meetings at which settlement may be discussed. www.CANADIAN L a w ye r m a g . c o m august 2013 43 ranDy lyhuIs By Coulter Osborne

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