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Seeking feedback on Litigation Plan Default Precedent

Ken Proudman - view Arbitrator profile
  BARR LLP
   Edmonton, Alberta


I've been seeing a lot of litigation plans recently. They sometimes have fairly impractical deadlines or omit necessary steps (especially ADR). While Litigation Plans can be useful to create pressure, sometimes the proposed deadlines are so tight that they don't really leave any time to negotiate, or for experts to do a proper job. When the deadlines are impossible and people stop following them, they lose their teeth.

While I know that very few files will actually see a trial, I thought it might be helpful to have a precedent that we can default to within the legal community. That saves us having to negotiate litigation plans from scratch each time, or thoroughly reviewing them to see what's missing. When clients see the number of pre-trial steps, it might also remind them why taking reasonable positions is important (and give lawyers a minimum to-do list).

I put together a first draft. Let me know what you think. It's primarily meant for matters involving property, not something like urgent one day parenting trials.

Any other suggestions? Is there anything that your office or municipality does which might be helpful to others?


Download Proposed Litigation Plan Precedent - DOCX file attached - May 19th

Caution: we recommend that you scan this file for viruses and malware prior to opening or otherwise using it.

1 6 months ago

Stephen Harfield
  Queck & Associates
   Sherwood Park, Alberta


It's a good start and I think if there was a standard template/checklist like this it saves everyone from searching their mind.

Off the cuff, I do not think exchanges of formal offers should be a step. Bring it when and if you have a good one.

Some typos (Statement of Defence, not Decence- although I would like a lot more decence in what we do)

Indicate that waivers of steps are not suspensions of time per 4.33

Notices to Admit

Interrogatories

dates to bring any advance costs applications.

DO you think one should mix an ADR plan with a litigation plan? It signals that ADR is not end of the road, but why wouldn't it be? So idea could be plan up to ADR, and then order for a further litigation plan if not resolved.

Good to have parties encouraged to agree to reasonable adjournments.

Paragraph 3 - can't we agree to bypass docket rather than slow things down? Or do we need to compel a party to bring an application for non-compliance of every step, can we not bake in an adverse inference?

Speaking of costs, can the order use the opportunity to 1) set the column number; 2) leave open changes to the column number to be varied or otherwise not in any way limit the discretion of the trial judge; 3) append the costs tariff so that parties can have their "holy crap, can we streamline this??" moment?

Think about citing in the preamble too that the parties have reviewed 1.2(3) of the rules respecting their obligations to continually assess their matter etc. and nothing in this order derogates from their fundamental responsibility to do so.

What could be useful is when this is all tweaked up, encourage the rules of court committee to make people do this as part of their statement of claim. At the very least make parties draw their mind to planning anytime there is a case conference or even docket.

I think we all know trying to plan for a file from top to bottom is just never going to work out, when family lawyer is 95% interim application based, and when often there are changes in counsel. But having something detailed that can be modified is good.

Also, in addition to costs, there is also 10.49 and and other procedural remedies. It prompts the question of whether these kinds of orders need to guide or constrain, be a carrot or a stick. I've never done this, but what might a "carrot" litigation plan look like? For example, and I don't know exactly how to word this, but you could say the parties shall each post $X for security for costs, all of which shall be returned if the parties opt for Arbitration or binding JDR. Just spitballing here.


1 6 months ago

Suchetna Channan
  Suchetna Channan
   Calgary, Alberta


Overall, this is a useful plan. Thank you! My concern is that it may take almost 1 year and 9 months before a trial is scheduled. Most cases may be resolved without a trial, however, obtaining trial dates sooner may encourage parties to act “faster” and move the claim forward. Also, experts generally need to know and to plan for the trial dates as soon as possible.

Personally, I am not keen about the Plan being endorsed and filed as a Consent court document.

I agree with Stephen's comment on "paragraph 3". I wonder if this may become an issue for the Courts to be dealing with more frequently than not.


0 3 months ago

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