I attended a CBA meeting at noon today at the Edmonton Courthouse. Justices Crighton and Pentelechuk and Bobbi-Jo McDevitt presented on the ABCA's new JDR initiative. See powerpoint attached.
Summary: 1) JDRs have been available at court of appeal for 20 years. 2) starting March 1, 2020 the program will be expanded to allow for at least one JDR per week. This is a pilot project, with the hope it will take off and help resolve many issues.
The Justices wanted to educate us about the perceived barriers to using JDR, and how to get past them.
First - if a party has a win in hand, what incentive do they have to do a JDR?
The answer here is that it may be a matter in which there are larger issues that could be addressed, rather than bubble and boil up again later in never ending litigation.So a JDR can help with longer term gain for everyone.
Also, many fast-track appeals deal with chambers orders, when there has not been a trial yet. So an ABCA JDR can try to address issues in the context of resolving some or all of the issues in the larger litigation. (By the way, the success rate for fast track appeals is very low)
The second perceived barrier relates to lawyers thinking ABCA JDRs require a lot of paperwork. They do not. The JDR process can be easily tailored to suit the needs of the litigants, sometimes all they need is the reasons from below. And if you indicate you want a JDR, this has the effect of pausing all other timelines. So in effect, you may not be in a position of having filed everything so lets just run the appeal. An EICC may be an apt analogy.
As for Real Barriers, there will be no self-represented litigants allowed. They will need counsel, even on a limited scope basis. They are following the Quebec model in this project.
The best cases to be thinking about this process generally are: 1) when the win is "too big" 2) when an appeal is met with a cross appeal, 3) any risk that the matter gets sent back down to trial.
There was some discussion about what to do if one party is interested, and the other is not. Should there be a compulsory pre-Appeal meeting to push people into JDR? They will consider this. In the meantime, Bobbi-Jo and her Calgary Counterpart Laurie Baptiste are pretty good at flagging the appeals coming in and putting counsel on the spot as to why they won't JDR.
More information will follow. It is expected that there will be binding (as binding as they can be, anyway) and non-binding JDRs, and litigants will have their choice of Justice.
There will be no costs granted in JDRs.
Comments or telephone discussions with the Justices can be arranged by contacting Amanda O'Keefe, assistant to Justices Pentelechuk and Crighton.