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Speaker's Corner: Extreme delays in civil trials an urgent matter

The subject of access to justice has been receiving much attention of late. It was top of mind at the annual conference of the Canadian Bar Association.

Consultation reports on the topic are forthcoming. I would like to focus, however, on a subject that has more practical implications for civil cases currently in our court system: the extreme delay in obtaining a trial date.

Civil cases in Ontario run the gamut of disputes that affect the daily lives of Canadians. Whether it be a claimant injured in an accident, an employee let go from work or a commercial claim, the courts are there as an outlet to declare the rights of the parties and resolve the dispute. It is axiomatic that timely conclusion of the matter is of importance. Yet in many jurisdictions in Ontario, the parties must wait anywhere from two to three years to obtain a trial date. This is after all pretrial steps in the proceeding are complete and the parties have certified to the court that they are ready for trial.

There is no doubt many cases languish in the system from delays created by the lawyers or parties. The delay referred to here is different. The wait times for trial dates I am speaking about relate to cases that are ready for trial.

The problem is particularly acute for trials of 10 days or more in Toronto where wait times of 2-1/2 years or more are common. London, Ont., and Peel Region are experiencing similar delays. Many of these cases involve catastrophically injured claimants in dire need of services or benefits, the entitlement to which are in dispute. The medical condition of the claimant would simply deteriorate in the meantime.

In R. v. Askov in 1990, the Supreme Court of Canada discussed the importance of speedy trials in the context of s. 11(b) of the Charter of Rights and Freedoms. The court stated: “Although the primary aim of s. 11(b) is the protection of the individual’s rights and the provision of fundamental justice for the accused, nonetheless there is, in my view, at least by inference, a community or societal interest implicit in s. 11(b). That community interest has a dual dimension. First, there is a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law. Second, those individuals on trial must be treated fairly and justly. Speedy trials strengthen both those aspects of the community interest.”

The court went on to make an important statement that has equal application to civil cases: “The failure of the justice system to deal fairly, quickly, and efficiently with criminal trials inevitably leads to the community’s frustration with the judicial system and eventually to a feeling of contempt for court procedures.

When a trial takes place without unreasonable delay, with all witnesses available and memories fresh, it is far more certain that the guilty parties who committed the crimes will be convicted and punished and those that did not, will be acquitted and vindicated. It is no exaggeration to say that a fair and balanced criminal justice system simply cannot exist without the support of the community. Continued community support for our system will not endure in the face of lengthy and unreasonable delays.”

Certainly, there is no similar constitutional right to a speedy trial in civil cases as there is in criminal matters. Nevertheless, it is apparent that the interests at stake in a great many civil cases are of fundamental importance. Without a viable system for the determination of civil claims, the parties will give up on their legal rights or move their cases out of the system entirely.

Ontarians can be justifiably proud in the extraordinarily high quality of our judiciary. The onus is now on them to address the unconscionable wait times for trial dates in civil cases.

For more, see "Lawyers frustrated as motion delays hit 7 months" and "Parties have role in court delays."

Allan Rouben is a Toronto lawyer, and a director of the Ontario Trial Lawyers Association. He can be reached via e-mail at allan@allanrouben.com or on Twitter at @AllanRouben.

  • Kathryn L. Smithen
    I think that it is grossly unfair to single out Justice Goodman for the backlog of family law motion decisions and/or bringing justice into disrepute. Calling her plain and obviously lazy is inaccurate. I have appeared before her on many matters. I have always found her engaged, sincere, hard working and genuinely concerned about the parties and the impact of litigation on their children. In one case, she stayed until 7:00 p.m. and heard from both counsel for over 3.5 hours to try to assist our clients in settling a matter so as to avoid a trial. She was instrumental in the matter ultimately settling.
  • Larry M
    Ms. Smithen it's all well and good that you have had a better experience with this judge but are you saying that 'Dave Lawyer' was lying about all those people who were left waiting much too long for their day in court so to speak? Did you not see the Toronto Star article where a self employed mother of two waited almost 5 years for her case to be settled and only after the Toronto Star took up her cause? And then that woman was awarded a very small amount in legal costs which left a very real lingering concern that this woman had been punished by the judge for going public with her tale of woe? If that women and others that Dave Lawyer referred to were your clients you'd be singing a different tune.

    As far as staying until 7.00 PM, oh my what dedication, as if the rest of us in the workforce haven't stayed past closing time when we were needed. Unlike judges the rest of us don't get the entire summer off as well as many other weeks off during the year.
  • Dave Lawyer
    Perhaps the change could start with the Regional Senior Judges giving their juniors a swift kick in the backside to get decisions issued.

    Once again Justice Susanne Goodman has created an enormous backlog of family law motion decisions. The motions were argued over 6 months ago and nothing.

    The lack of decision is causing more strife to these families than any outcome could. This is truly bringing justice into disrepute.

    The late Tracy Tyler of the Toronto Star did an expose on Justice Goodman and now the Law Times should do one.

    But be warned, those litigants that complained about her in the Star were punished on the cost awards for the impertinence of speaking out about the judge's plain and obvious laziness.

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