"Chess Clock" Proceedings
December 2010
NOTICE ON “CHESS CLOCK” PROCEEDINGS
The Experience in the B-Filer case
The B-Filer case (B-Filer Inc. v. The Bank of Nova Scotia, CT-2005-006) was the first in which the Competition Tribunal used the "Chess Clock" method of managing the hearing time.
Counsel for both parties asked that the case be assigned a 19 day hearing. Based on a five (5) hour sitting day, the time they asked for totaled ninety-five hours. Counsel divided the time equally taking forty-five hours each and left five (5) hours to be used by the Tribunal for questions and housekeeping matters.
Counsel understood that, unless they were responding to matters raised by the Tribunal, whenever they were on their feet, whether opening, examining in chief, making an objection or responding to one, cross-examining, or making final argument, their time was running down. They also understood that when their forty-five hours expired, their oral participation in the hearing would conclude.
In these circumstances, each counsel was responsible for deciding how to use the available time to greatest effect and for allocating time between the various segments of the case. To use an extreme example for illustrative purposes, if counsel had chosen to use forty hours for an opening statement, there would only have been five hours left to present evidence, cross-examine and make final argument.
The Tribunal reporters agreed that the transcript would show the time used by each counsel. Each morning, the reporters provided everyone at the hearing with a daily time report. It showed counsel how much of their time had been used and allowed them to allocate their remaining time. If there was a dispute about the time report, it had to be raised immediately. In B-Filer, there were no such disputes.
Future Cases
As a result of the successful implementation of this procedure, counsel can anticipate its use in future hearings with modifications suggested by our ongoing experiences. For example, we no longer allocate time to the Tribunal. The time it uses simply does not count. As well, we have decided that it is more realistic to base our calculations on a four and a half (4.5) rather than a five (5) hour day.
We have also developed a practice for dealing with the time spent by counsel arguing objections and motions. The total time spent will generally be deducted from the time remaining available to the losing party on the objection or motion. For example, if applicant’s counsel spends 12 minutes arguing an objection and counsel opposite uses five (5) minutes, a total of 17 minutes will be debited from the unsuccessful party’s hearing time. The purpose of this rule is to discourage frivolous objections and arguments. However, the presiding judicial member retains the discretion to vary the application of this rule in appropriate circumstances. Further, although the total hearing time must be set at an early stage, the parties need not divide the time until after witness statements and reports have been exchanged.
Conclusion
Justice Dawson observed in B-Filer at paragraph 280 that:
A significant benefit that flows from this type of time management is that hearings will conclude in the time allotted. This better allows the parties to know in advance the cost of the hearing, and avoids the delay and additional expense caused by the extension of hearings beyond their original end dates.
Her statement continues to represent the Tribunal's view that chess clock hearing management is a best practice.
Justice Sandra Simpson
Chairperson