Ottawa is one of the sites for a pilot project involving Binding Judicial Dispute Resolution. This alternative dispute resolution process provides an opportunity for parties in litigation to consent to their matter being decided by a judge, but on a summary basis, at a hearing scheduled for 3 hours or less.
JDR is an effort to streamline the family court system so that more straightforward cases go down a different track than a standard case. It is appropriate for less complex litigation files, where there are fewer legal issues, and fewer facts in dispute. It is both faster than traditional litigation, and also less formal. While it might take several years for your case to reach a trial date on the standard litigation track, if parties elect to proceed by way of JDR, they will be able to get a final decision on their case from a judge much sooner.
The formal rules of evidence will not necessarily apply to the adjudication of disputes under JDR. This is a significant consideration for the parties. If there are substantial facts in dispute, or issues of credibility, a trial would be the more appropriate forum because a trial judge can weigh and assess both oral testimony, and documentary evidence, prior to making a decision.
At a traditional trial, there are also rules of evidence which dictate the types of evidence which are admissible. For example, evidence based on ‘hearsay’ statements- that is, statements made by third parties who are not testifying in court- are generally not admissible to prove the truth of their contents.
Finally, JDR does not afford any opportunity for the parties to cross-examine each other on their evidence. Testing the strength of the opposing party’s case through cross-examination has always been the hallmark of a fair trial. To the extent that the rules of evidence are more relaxed with JDR, this might not work in every party’s favor, or be something they choose to forgo for the sake of expediency.
In my view, JDR would likely only be an option for a small percentage of family law cases. The fact that both parties have to agree to use BJDR, and both be on the same page regarding expediting their case, will limit its usage.
JDR can be requested, on the consent of both parties, at the case conference. Following an endorsement from the case conference judge, the parties will need to file a procedural Motion where they explain why they believe their dispute is appropriate for JDR. If approved at the procedural Motion, the trial coordinator will then set a date for the JDR hearing.
The pilot project is intended to run for 1 year.