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 email@example.com or on Twitter at @AllanRouben.