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Pay-to-wait system is alive and well

|Written By By Kirsten McMahon

The Ontario civil justice system has entered an era where "litigants are not only paying to win or lose, they're also paying to wait," says Advocates' Society president Linda Rothstein.

London, Ont.'s Barbara Legate suggests if the legal community in Toronto were closer-knit, the system would probably work better. Photo by Kirsten McMahon
London, Ont.'s Barbara Legate suggests if the legal community in Toronto were closer-knit, the system would probably work better. Photo by Kirsten McMahon

In order to fix the system and increase access to justice, said attendees and speakers at a recent Advocates' Society conference on streamlining the civil justice system, the bench and bar must get back to a simpler, more proportional approach, while still remaining mindful that there is no one-size-fits-all solution.

Unlike most conferences, this packed-house gathering saw lawyers and judges break off into smaller groups to informally exchange thoughts on problem areas of the civil justice system and brainstorm a shopping list of ideas to reform the system.

"We know for sure that solutions will not magically appear today," said Rothstein, "but we are hopeful that the broad cross-section of representatives from the government, the bar and the judiciary sitting here reflect the unwavering commitment of all of you — bench, bar, the executive branch — to work together to generate ideas," she said.

The overarching theme of the conference was that trials have become more and more complicated — although the legal issues haven't necessarily changed all that much — driving up costs for the average person who finds him or herself in court.

There are many reasons why trials are taking longer: self-represented litigants are on the rise, judges have become more reluctant to intervene, e-discovery produces more hay to weed through in order to find the needle, and the large Toronto bar doesn't foster co-operation or collegiality, just to name a few.

Justice M. Marvyn Koenigsberg of the Supreme Court of British Columbia said B.C.'s civil system is very healthy, with virtually no backlog, and wait times of about four weeks for a two-week trial, which is case managed.

"We don't have the same experience," said regional senior Justice Warren Winkler, who launched a three-year pilot project on Dec. 31, 2004. Since then, Toronto has stopped automatically assigning civil cases to case management under the Rules of Civil Procedure. Instead, a new regime based on the principle of "case management as necessary, not necessarily case management" has been created.

Although the project has reportedly reduced wait times — lawyers looking for a two-week trial could probably get one this year if they have everything in order — Winkler says what is certain is that a lot of cases are going out of the system through mediation or private courts.

"The good cases are going out of the system for two reasons. One: costs, and two: predictability, because people like in a very important case to choose their trier of fact so certainty is a key element."

He thinks trials are longer and more complicated for a number of reasons. Besides problems with merit or substantive issues, there are the cases with multiple arguments, multiple causes of action, and multiple motions, "the vast amount which have no legs whatsoever," he says.

Then there are the cases with 50-plus bankers' boxes of documents and scores of evidence.

"Keep out the evidence that's not important. It takes up all that time. You look at a trial and you say, 'How much of this evidence at the end of the day has anything to do with the case at all?' Sometimes not very much, and sometimes none," said Winkler.

"We have to focus the cases more and I think you have to put some of the problem where it really should be and that's on the bench because judges are not interventious enough, they're not controlling our trials. I take blame for this too, personally. We just don't intervene enough."

Barbara Legate, of London, Ont.'s Legate & Associates, said that simplified rules, caps on jurisdiction and legislative reform may not be the answer. It might be something as simple as being more familiar with other members of your local bar.

"In the London bar where I practise . . . what goes around comes around in that community and you learn that very quickly," she said. "You learn motions are a big waste of time. Sitting in motions court is a big waste of time and there are other ways to solve your problems."

She said lawyers in Toronto are less likely to run into each other at lunch and less likely to be forced to strike deals constantly with the same lawyers week in and week out.

"If there were some way to create smaller communities within the profession I think that we might be able to take care of a lot these problems ourselves," she said.

Associate Chief Justice André Wery of the Superior Court of Quebec agreed, and said simplification and co-operation should be at the root of any solution.

 "I'm not saying the legal questions at stake are more complicated," Wery said, "but I think that the way those questions are processed are more complicated.

"Essentially we are practising law today as it was practised 30 years ago. In an era of real-time communication, we are still at the age of typewriters."

That complexity, he said, is the major reason for delay, and Montreal is seeing the same kinds of backlog as Toronto.

"We simply have to find new ways of bettering this process. We must find a way to reward efficiency," he said.

While speakers agreed that not every jurisdiction requires the same solution, they did acknowledge that many people simply cannot afford the judicial process any more. Wery estimated that 40 per cent of litigants in family trials in Quebec are self-represented and Koenigsberg said between 10 and 20 per cent of litigants in B.C. are self-represented.

Attorney General Michael Bryant addressed the crowd and said Ontario has the healthiest legal aid system in the country and it is growing each year, with the Liberal government supplying $12 million to the program annually.

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