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Speaker's Corner: Speeding up court can be costly, make things worse

In a world of supposed scarce judicial resources, we now we have the ultimate judicial approval of yet more budget cuts: Hryniak v. Mauldin. Access to justice, which some believe is code language for merely trying to speed things along, is now a financial decision driven by the need for more efficient use of judicial resources.

That’s budget speak for suggesting there’s no more money.

I believe lawyers’ work is like an automobile production line. Car parts move along a linear continuum, and as you continue along a vehicle takes shape before your eyes as an idea turns into a tangible product. You can see it, touch it, and, ultimately, drive it. But as Adam Smith and Henry Ford knew, the assembly line has certain innate and unavoidable limitations. It needs to go through motion and time. Engineers study such things using time and motion studies that produce workflow matrices that predict productivity and outcome.

But there is one undisputable and scientific fact to consider: forcing the line to go faster doesn’t always increase productivity. In fact, speeding up the line is usually counterproductive, as some companies found to their great advantage. But the U.S. automakers didn’t always believe that and it took the auto unions many years to convince them that speed did not determine efficiency. In fact, there was a time when production line speed almost brought the industry to bankruptcy as the poor quality of North American cars led to the quality crisis of the 1980s. Product recall and quality control became a major issue, and at the root of the problem was the so-called productivity crisis that was code for telling people to work faster and produce more. Does that sound familiar?

As in the auto industry, the emphasis on increasing production by reducing the time allocated in the justice system is counterintuitive and will not deliver the desired outcome; rather, it will only degrade the quality of the justice product and increase recalls, also known as appeals.

Status court is the ultimate, and yet a simplistic, example of this approach.

We have a large and efficient practice, but it wasn’t always like this. When status court came into my life, we weren’t ready for the tsunami. At one point, the registrar called me to warn we had about 100 status notices coming to us a month. It was overwhelming. We tried to cope but likely lost the battle on all fronts.

Status court added a whole other process to our files with the cost an estimated $750 for internal supervision of it. Someone has to manage the new process, and each file likely needs at least two court appearances. But when the court tosses an action — and the statistical odds are that some cases will face that result — we have to bring a motion. If the other side opposes it, we go to a long motion list and cross-examinations. If we lose, we appeal.

And if we lose at appeal, we pay the full additional surcharge of $12,500 with the cost of the claim offloaded to LawPRO from auto insurance. The auto insurers and defence counsel love that result. Some insightful judges have actually noted LawPRO is there for that purpose. Even if we win, the court reinstates the motion but six months have now passed.

So the cost of the so-called delay problem has now fallen to the lawyers. That was the plan, of course, because we know the press releases leading up to the Justice on Target project were all about lawyers causing the delay.

Go back and read them if you have time between status court appearances. We were scapegoats for the government’s failure to do for the courts what Polaris did for titles.

There are likely at least 200 status court appearances in Ontario each week. And does that cost the Ministry of the Attorney General any staff administrative time? We’ll never know. But I understand the ministry has a special status court volunteer group of employees who want to curry favour with their superiors. It is a good example of volunteerism at its best. But I don’t want readers to just believe me when it comes to the costs of this issue.

LawPRO, in fact, has set up a special status court surcharge. Is it a claims crisis yet?

Meanwhile, we hear nothing from the province about the success of the status court process. Politicians, and our attorney general is, first of all, one of those, usually like to brag about successful programs. But there’s not a peep so far on this. That in itself is telling.

And the ultimate efficiency tool, the summary judgment motion, is a whole new court system with its own scheduling process. That, of course, is not costly given that volunteers run it. In turn, we’ve had long lineups to get to the shortcut and reports you could get a trial sooner than a summary judgment motion.

The real issue here is the failure of the former attorney general’s court computerization project. After the provider pulled out and got its breakup fees that were reportedly in the hundreds of millions of dollars, we still have paper files in the court system.

Maybe we should be transparent, admit it’s a big mess, and ask Toyota to come down for a few days to help us fix it.

Lou Ferro practises personal injury law at Ferro & Co.

  • Dave Warren
    Agreed. The "fix" is worse than the problem. Same result with case management in family court. More steps, more cost, now almost all litigants are self-representing. Those that installed the fix are too invested to admit it's not working.
  • Bradley Wright
    Most lawyers can figure out a fair resolution to a litigation dispute within the first month and predict with high accuracy what a fair-minded and informed judge would decide. Why then do litigation files takes three years to resolve? There are two main reasons. First, the government's system adds too many steps to the process, each step separated by six months requiring time (i.e., money) spent re-preparing. Second, there are now far too many barristers per capita - a situation that is worsening every year. Doubling the number of barristers per capita cuts in half the number of clients per barrister resulting in the barristers having to earn twice as much money from each client. This engenders churning and other evils, though almost never done with malice aforethought. The drop in clients per lawyer is not made up for by new clients who in the past would not have hired a lawyer. Most of them still don't.
  • David P.
    This article is absolutely correct. Personally, I am still waiting to hear a justification for status notices: All of the parties are content to let the file sit, but the court system wants to stir the pot. The court system is already completely overburdened and yet they want more people flooding it.

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