Court File and Parties

Court File No.: 09-CV-393902, 09-CV-392125, 09-CV-393258
Motion Heard: April 18, 2012

Superior Court of Justice - Ontario

Re: 09-CV-393902 Covelli v. Sears Inc.

09-CV-392125 Videau v. Sears Inc.

09-CV-393258 Marsden v. Sears Inc.

Before: Master Joan Haberman

Counsel:
White, P. for the plaintiffs in all three actions
Taylor, R. C. for Sears Inc.

Reasons

Master Haberman:

[1] The plaintiffs move for an order under Rule 77.05(2)(b) to have all three actions moved into Case Management. Sears does not oppose this relief.

[2] Rule 77.05(2)(b) provides that any case management master can make such an order so it is within my jurisdiction to consider the issue and then make the order if, in my view, it if warranted.

[3] I heard the motions on April 18, 2012 and at that time, I declined to make the orders sought as the evidence filed did not address the established criteria. I indicated that brief Reasons would follow and I provide them now.

[4] Notwithstanding the fact that the orders sought were not opposed, the parties were still required to demonstrate that their cases met the criteria established by Rule 77.05(4) before these orders could be granted.

[5] The Rule directs the court to consider “all relevant circumstances”, including:

1. The purpose set out in Rule 77.01(1);
2. The complexity of the issues of fact or law;
3. The importance of either factual or legal issues to the public;
4. The number and types of parties or prospective parties and whether they are represented;
5. The number of proceedings involving the same or similar parties or causes of action;
6. The amount of intervention by the court that the proceeding will likely require;
7. The time required for discovery, if applicable, and for preparation for the trial or hearing;
8. The number of expert and other witnesses;
9. The time required for trial or hearing;
10. Whether there has been substantial delay in the conduct of the action.

[6] Each of the three actions involves a claim for wrongful dismissal by a former employee of Sears. One counsel represents all three plaintiffs and Sears is represented by the same counsel in all three actions. There are therefore only two counsel and a total of 4 parties involved in these proceedings. This immediately suggests that no scheduling nightmares should be anticipated, as might be the case where multiple parties and counsel are involved.

[7] There is also no indication in the evidence filed that any of the parties or counsel reside outside Toronto so arranging for oral discoveries should not be difficult.

[8] I am unable to comment further as to the nature of the allegations contained in the claims as counsel did not include a copy of the pleading in any of his three records. I have no reason to believe, however, that these are anything more than standard actions for wrongful dismissal. I was given no indication that either the factual or legal issues are complex.

[9] I have no idea how much is in issue in each action, but I doubt, based on the materials that were provided, that any of the actions will impact beyond the parties to it. In other words, I have no evidence or information to demonstrate that the public interest is somehow engaged.

[10] No evidence was filed addressing any of the criteria, in fact, except for items 6 and 10. It is suggested that there has been considerable delay in moving the action forward and that court intervention will be needed.

[11] The actions were started in 2009, two in December and one in November. According to the affidavit of Jeff Hopkins, counsel to the plaintiffs in all three action, the three plaintiffs are former long-term employees of Sears. Each alleged in their claim that Sears has a policy or practice of dismissing employees allegedly for cause when they know that the circumstances supporting such a plea do not exist. Each plaintiff claims that this was done by Sears to enable them to avoid providing statutory or common law reasonable notice or pay in lieu.

[12] Sears moved to strike these allegations. Though the motions were heard by the master in April and July 2010, she apparently did not release her decision until March 23, 2011. At that time, she dismissed the motions.

[13] Sears appealed from the master and on September 1, 2011, Hainey J. dismissed all three appeals. Sears sought leave to appeal to Divisional Court and on November 23, 2011, Dambrot J. dismissed those motions.

[14] Accordingly, more than 18 months were lost dealing with this pleading issue, which is now spent.

[15] Rather than defend the actions, however, Sears served demands for particulars in all three actions on January 10, 2012. A response to each demand was served on February 23, 2012.

[16] On March 9, 2012, Sears indicated it was not satisfied with the responses received and they proposed a resolution which was not satisfactory to the plaintiffs.

[17] At this point, Sears has not moved for further particulars and the plaintiffs have taken no steps to note the plaintiffs in default. The actions are effectively in a holding pattern and counsel have come to court, hoping that an order moving the actions into case management would break the log-jam.

[18] Mr. Hopkins claims that he believes the three actions will require extensive court intervention and that this substantial delay has caused his clients tremendous financial and emotional hardship. None of the plaintiffs has provided evidence regarding this point.

[19] While I have no doubt that the parties’ approach to this litigation will mean multiple trips back and forth to court, that, alone, does not automatically result in a transfer to case management.

[20] When reviewing the evidence that was filed in the context of the criteria established by Rule 77.05(4), I cannot say that this is a group of cases that merits a transfer to case management. There is nothing about these actions that distinguish them from a large portion of the court’s inventory, the vast majority of which is not case managed.

[21] Further, Rule 77.05(4) requires that the request be considered in light of Rule 77.01(1). That Rule states:

The purpose of this Rule is to establish a case management system that provides case management only for those proceedings for which a need for the court’s intervention is demonstrated and only to the degree that is appropriate , as determined in reliance on the criteria set out in this Rule.

[22] This Rule must be considered in the context of where we are now with case management. Case management began life in Ontario as a twinkle in the eye of the Bench, the Bar and the Ministry of the Attorney General. All three groups worked together in the 1980’s to come up with a proposal for which buy-in could be achieved from all three groups.

[23] Three different pilot projects were launched: one in Toronto, one in Windsor and the third Sault Saint Marie in the early 1990’s. The Sault opted out of the project and Ottawa was eventually added to the mix.

[24] Rule 77 was born in the mid-1990’s and implemented in Toronto and Ottawa, with a modified version adapted for use in Windsor.

[25] The Toronto experience began with 25% of new actions being allocated to case management, initially all being handled by one case management (CM) master. By 1998, it was clear that one master could not continued to take 25 % of all new cases into the project, while continuing to handle what was becoming a large and expanding inventory all on his own. Three more CM masters were therefore appointed in December 1998, and a further two were added in early 1999.

[26] Shortly thereafter, Toronto moved to 100% case management, such that all new actions commenced in Toronto were automatically assigned to case management unless they fell within a narrow group of exceptions. Several more CM masters were appointed over time. However, as the original stream of masters (traditional masters) retired, the CM masters began to take over more and more of their motion and reference work in addition to their own case management work. Two of the CM were eventually moved over to do construction lien work exclusively.

[27] The court then decided to attack the backlog of old inventory that had accumulated pre-case management. Call-over courts were introduced to reactivate those actions and to get these older action moving towards trial. This led to considerable motion activity and the scheduling of many trials, more, it appears, than the system was able to accommodate.

[28] By 2004, CM master were managing up to 1,700 cases each. At the same time, the court was becoming less and less able to meet fixed trial dates. There was no commitment to appoint more CM masters in Toronto, other than to replace traditional masters as they retired. It was clear that the project was unable to continue in its then form with the available resources.

[29] It was in the context of that environment that Rule 77 was recast to function as it does today. As of January 2005, new cases were no longer automatically assigned to case management in Toronto. Those already in the system stayed in the system until their resolution, but new matters were only imported into case management after that date if they met the new criteria set out in the Rule and then, to be managed as per the new “light touch” mandated by Rule 77.01(1). This new approach is manageable with current resources – anything more is not. As a result, case management is now reserved for those cases for which counsel can demonstrate a real need.

[30] In any action with two or more motions, it would likely be faster and less costly to have all motions in the action heard by a single CM master - the hallmark of case management. In any action where counsel are having difficulty moving forward without multiple motions, having access to case conferences where issues can be discussed and worked out on a consensual basis would also be beneficial. While many cases would certainly benefit from case management, “benefit” is not the guiding criterion.

[31] The need for “light touch” case management and a strict gatekeeper approach to Rule 77.05(4) is particularly important now. Two of the 11 CM masters who do all the civil work of the court within a master’s jurisdiction were recently transferred, so now perform bankruptcy and insolvency work only.

[32] This leaves only 9 CM masters to handle all of the civil work of the court within the masters’ jurisdiction, including case management. In addition to motions and reference work, CM masters conduct all of the court’s pre-trials in Simplified Rules matters and preside over Status Hearing Courts. Of the nine CM masters left doing this civil work, 3 also circuit and conduct pre-trials in outlying regions.

[33] The support staff model for CM masters has also been modified recently, so there is no longer one dedicated staff for each CM master, to assist in tracking matters and to facilitate continuity.

[34] The ability to find the time and the resources needed to perform case management are, in my view, “relevant circumstances” within Rule 77.05(4) that must be also be considered on a motion of this kind. The CM masters’ current situation underscores the need for the court to be very selective about what it transfers into case management.

[35] In the context of all of the foregoing, I am not satisfied that sufficient need has been demonstrated to warrant the orders sought.

[36] The motions are therefore dismissed.

Master Joan M. Haberman

Released: April 23, 2012