Delay causes clients to suffer financially, physically, mentally says Thomson Rogers' Ava Williams
This article was produced in partnership with Thomson Rogers Lawyers.
Anecdotal evidence that Canada’s civil justice system is in crisis is plentiful, and the Advocates’ Society’s 2023 Call for Action on Delay in the Civil Justice System report lays out some alarming facts. In Ontario, it currently takes almost 1.5 years for a motion longer than two hours to be heard by a judge in Toronto and more than 4-5 years for a civil action to proceed from commencement to trial.
“Delay affects plaintiffs negatively, potentially leading them to abandon claims or accept low-ball settlement offers, and may diminish the amount of damages owed to plaintiffs by way of statutory provisions such as the rising deductible,” says Ava Williams, associate at Thomson Rogers Lawyers. “Parties suffer financial losses as well as physical and mental health issues; cases lose momentum leading to even more delay; and it becomes a war of attrition: the party with more resources ‘wins.’”
Many factors contribute to the backlog, including the courts operating on an antiquated system, an increase in self-represented litigants as recently noted by the Ontario Court of Appeal in Grand River Conservation Authority v. Ramdas, not enough judges, last minute adjournments, the constitutional right to speedy trial in criminal matters pulling resources from civil court, and of course the impact of the COVID-19 pandemic.
Issue reflected in judicial commentary
The significant backlog is also being acknowledged in judicial commentary, including a recent endorsement by Justice Markus Koehnen that shared further grim statistics: according to the results of the 2022 World Justice Project Survey, Canada ranked 56th out of 140 countries “when considering whether the administration of civil justice was free from unreasonable delay” and, even worse, Canada ranked 68th when considering “access and affordability of the civil justice system.”
Timely access to justice is a critical component of a democratic society, and the lack of it has serious repercussions. A quote from a Supreme Court of Canada criminal case, R. v. Askov, “is also applicable to our current civil situation,” notes Williams:
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.
The Advocates’ Society’s report also points to a 2022 quote from the Saskatchewan Court of Appeal decision Huard v. The Winning Combination Inc., para. 86, which states that “delay in civil proceedings tends to have deleterious effects on the parties. Witnesses die, become unavailable or simply forget things. Documents disappear. Costs soar. However, the consequences of delay go beyond the parties to an action. [… U]nnecessary delay inevitably saps public confidence in the judicial process as a method for dispute resolution.”
Counsel should ‘pick your battles’
There are some efforts to fix delay at a systemic level, Williams says, pointing to the introduction by Toronto Civil Court of “what appears to be a sort of vetting process” that requires opposed motions/applications of less than two hours to proceed to a case conference first, where a judge will decide if the issue should be resolved in court.
“The expectation is that this will reduce the number of motions to be heard in court,” Williams says, but notes lawyers can make straightforward changes to help ease the burden on the judicial system as well, including things like being as familiar with your files as possible so you’re prepared for upcoming litigation events and focusing on being proactive instead of reactive. For example, requesting undertakings immediately after discovery and serving them promptly is a simple way to save everyone the trouble of bringing an undertakings motion in the future.
The “motion culture” in the profession is a large part of the problem, Williams notes, and she’s “a firm believer in calling opposing counsel to attempt to resolve an issue without the court’s involvement.”
“We don't ambush each other at trial, so why do we do it with motions? If there’s an issue that may require a motion, pick up the phone and talk about it with opposing counsel. Even better if you can send them a case or two that supports your position. See if it can be resolved, or at the very least if the issues in contention can be narrowed" she says. "This saves everybody — including the court — time and resources.”
And if the matter can’t be solved out of court, counsel should consider the use of an application or summary judgment trial which require less resources. Bottom line, lawyers can help address the backlog by picking their battles and being reasonable, Williams says.
“It’s easy to get caught up in the adversarial nature of litigation but we shouldn’t use court time just for the sake of fighting with opposing counsel or proving a point that won’t move a case forward. Obviously going to court is part of our job, but save it for things that actually require the court’s resources.”