It can take months to get in front of a judge to schedule a motion, says Sharon Vogel
Judicial vacancies are delaying construction litigation, holding up projects, and leading parties to alternative dispute resolution, says construction lawyers Sharon Vogel and Bruce Reynolds, partners at Singleton Urquhart Reynolds Vogel LLP.
Last week, the Federal Court of Canada called on the Prime Minister to fill judicial vacancies, noting that the current shortage is an “untenable and appalling crisis.” According to the Office of the Commissioner for Federal Judicial Affairs Canada, as of Feb. 1, there were 75 vacancies in federally appointed courts across Canada and 1,180 total sitting judges, including supernumeraries. In Ontario, at the Superior Court, Family Court, and Court of Appeal, there are 375 sitting judges and 23 vacancies.
In construction law, scheduling matters in court – from straightforward and simple motions to complex and lengthy construction trials – is becoming increasingly difficult, says Vogel. Many of her disputes on larger construction projects require extensive court time. But it also takes months to get in front of a judge to schedule a motion. And in the construction field, when pressing issues arise while parties work together to complete a project, she says it is crucial to resolve these disputes promptly.
“The judicial system is broken.”
Associate judges are provincially appointed judicial officers with the authority to determine certain civil matters, including motions, pre-trials, and case conferences. In Toronto, they adjudicate construction lien trials.
Vogel says associate judges are a great asset to lawyers practising in Toronto.
“They deal with [routine lien matters] very efficiently and effectively. But outside Toronto, lawyers don't have that same access to those associate justices.”
“[Associate judges] are a very, very important asset,” says Reynolds. “They could use additional resources in order to be able to accelerate the scheduling of certain matters, but their expertise is very strong and a real asset to the lien practice.”
He says that with the traffic jam in the courts, litigants will consider other options. These include parties agreeing retrospectively to submit their dispute to arbitration to get a timely result where the contract did not already contain a mandatory arbitration clause.
Another option is prompt payment adjudication, where parties to a construction project can obtain an interim, binding decision on a dispute, which can be set aside later through arbitration or a court proceeding. The prompt-payment adjudication system emerged in Ontario in 2019 with the Ontario Dispute Adjudication for Construction Contracts (ODACC). There has also been prompt payment adjudication in Saskatchewan and Alberta since 2022. Ottawa gave Royal Assent to federal prompt payment legislation in 2019, but it is not yet in force. The same is true with Manitoba, Nova Scotia, and New Brunswick.
For an ODACC adjudication, the party with the complaint delivers a notice of adjudication to their counterpart and nominates an adjudicator. If there are issues agreeing on an adjudicator, ODACC can appoint one. Once the adjudicator is determined, the complainant has five days to deliver backup documentation, and then the adjudicator has 30 days to decide the matter. In an interview with Lexpert last year, Gowling WLG partner Louis-Pierre Grégoire said that the ODACC system would produce a written decision on a matter within 46 days.
“The problems that are facing the general court system are motivating folks to seek other, more timely alternatives for the resolution of their disputes,” says Reynolds.
