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Crackdown on placeholder motions

Measure among changes credited with cutting delays
|Written By Yamri Taddese

Superior Court Chief Justice Heather Smith says her goal of reducing long wait times for civil motions to four months “has been largely met” in Toronto.

‘They’ve instituted changes that are not designed to shorten the time period for having a motion heard; they’re designed to discourage people from bringing motions,’ says Daniel Reisler. Photo: Laura Pedersen

Six months after Smith told Law Times her office was working to reduce delays for civil motions, lawyers are reporting some improvement for short motions. But they say it still takes too long to book long motions and trials.

In a statement to Law Times, Smith said the review efforts initiated in September 2013 and guided by Regional Senior Justice Geoffrey Morawetz divided the work into two phases.

“The first phase focused on reducing the wait times for civil long motions in Toronto. The goal of Phase I was to reduce the extended ‘times out’ to civil long motions in Toronto down to less than four months by the end of 2013. That goal has been more than met — by the end of December 2013, the wait time for a long motion had been significantly reduced to considerably less than four months,” said Smith.

The outcomes, Smith added, are a result of new scheduling practices introduced in the Toronto region. That involved increasing the scheduling capacity by 66 per cent as of November 2013 through adjusting judicial resources and scheduling practices.

“In November 2013, a new practice direction was implemented to eliminate ‘placeholder’ motions and applications,” she added, noting the courts now require a party scheduling a civil motion to file a notice of motion within 10 days and pay a fee or lose the hearing date.

But for civil litigator James Morton, the impact of the change has mostly been on scheduling short motions.

The new requirement, he says, effectively cleared up the traffic of lawyers booking motions “on the off chance that they’ll need it.”

“They’ve sort of cleared up the people booking motions on a maybe,” he adds.

“If people book tables at three restaurants, planning to go to one of them, you’re not going to find a lot of reservations for a restaurant.”

But the change isn’t noticeable for long motions, possibly because lawyers never booked them on the off chance they’d need them, he suggests.

Trial and appellate lawyer Geoffrey Adair, who reports “modest improvements” in booking motions before masters, says quantifying the change has been difficult thanks to what he calls “erratic scheduling” that sometimes results in earlier motion dates and other times can yield long delays.

Adair suggests requiring a notice of motion may not be sufficient to deter placeholder motions. Instead, he believes the courts should require a party to file an entire record of motion 10 days after booking a hearing date.

But for Daniel Reisler, a founding partner at Reisler Franklin LLP, discouraging people from booking motions can’t be a solution to the delays. The fact that lawyers book motions early in case they need them later on shows just how difficult it is to schedule them when they do need them, he notes.

“They’ve instituted changes that are not designed to shorten the time period for having a motion heard; they’re designed to discourage people from bringing

motions,” he says.

Booking short motions is faster now but is “never less than six months,” according to Reisler. He adds that the current scheduling system lacks transparency whereas the previous “running list” approach allowed lawyers to see just how many cases were on the schedule ahead of them.

While the improvement on short motions is good news, not much has changed in the way of long motions, according to Morton. “Anything over about two hours is still ages and ages away in my experience,” he says.

Lawyer Chet Wydrzynski, also of Reisler Franklin, says that’s his experience, too. “Long motions are still very far out. They won’t even give you a date on the phone,” he says.

“And you have to go to long motions scheduling court, which, as far as I’m concerned, is a waste of time.”

Several lawyers echoed similar sentiments about having to spend hours at the long motion scheduling court just to schedule a motion date, something they say should change.

In the meantime, the civil review process is continuing at Greater Toronto Area courthouses including Brampton and Newmarket, Ont., said Smith.

“It is anticipated that certain practices and procedures followed in Newmarket and Brampton may be considered in Toronto region. It is also hoped that Newmarket and Brampton may benefit by adopting certain practices and procedures from Toronto region,” she noted.

She added: “With respect to civil initiatives in Brampton, Brampton already has a rigorous pretrial regime for long civil trials, in which all civil trials expected to take more than five days are pre-tried before a trial date is set. Providing trial dates upon completion of the pretrial ensures that matters are trial-ready before they are scheduled for trial. I understand that Brampton is also considering the initiatives identified in the review.”

For more, see "Lawyers frustrated as motion delays hit 7 months," "Civil litigation delays Smith's 'top priority' for coming year," and "Maintain the momentum."

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