On June 29, the society published Delay No Longer. The Time to Act Is Now, a paper highlighting the “severe negative consequences” of delays in the justice system.
The society noted that in Quebec litigants would wait an estimated average of “593 days between the filing of their claim in the Small Claims Division (for claims of less than $15,000) and trial” in 2021-2022.
While in British Columbia in 2022, “the Supreme Court ‘bumped’ (i.e. delayed hearings because of the lack of judicial resources) 10.9 per cent of all long chambers applications, 24.6 per cent of civil trials (102 bumped compared to 312 heard) and 14.4 per cent of family trials (26 bumped compared to 154 heard).”
The society also noted that in Alberta, “it routinely takes more than 9 months for an application longer than 20 minutes to be heard by a judge in Edmonton or Calgary; and 2 to 3 years for a trial longer than 5 days to be scheduled from the date the parties certify readiness.”
In Ontario, Canada’s largest jurisdiction, “it currently takes almost 1.5 years for a motion longer than 2 hours to be heard by a judge in Toronto; more than 1.5 years after the trial management conference (or more than 4 to 5 years from the issuance of the original application) for a 3-week family law trial to be heard by a judge in Brampton; and more than 4 to 5 years for a civil action to proceed from commencement to trial.”
The Advocates’ Society president, Dominique Hussey
“What we had in this case was a mounting distress signal that was anecdotal in nature, but there were so many anecdotes, and so many stories about delay and the inability of our members to deliver justice to their clients due to delay, that we felt that we had to do something. We had to draw greater attention to this issue, which the media had not been picking up on, which we were not talking about enough within the legal community, and which the public had not been talking about enough, even though it’s an issue that directly affects the public,” she explained.
Hussey emphasized that delays in the justice system existed before the pandemic, “but the pandemic definitely exacerbated it” due to backlogs.
“There was a time when the courts were not open for business or were not open for business in the same way. And the number of cases filed did not slow down during the pandemic. And judges were not appointed as promptly as they might otherwise been,” she added, noting that, as of the beginning of June there were “79 judicial vacancies in the superior courts and courts of appeal across Canada.”
“There just have not been enough resources directed to the justice system over time. So, it was really just a confluence of circumstances,” she explained, noting that The Advocates’ Society has heard from its members that the “delays are no longer tolerable.”
“We’re finding that many of our clients, commercial and individuals, are in an intolerable position,” she stressed.
The paper sets out some “ideas that stakeholders may wish to explore” to help address the situation. They include measuring delay and setting targets, increasing resources; improving the use of technology; reviewing and revising “procedural rules that are roadblocks”; and ensuring lawyers “continue to support the efficient use of court resources.”
“There is no question we need to accelerate the appointment of good judges to help deal with the current deficit,” Hussey said, noting that court staffing issues need to be addressed as well.
“It would be helpful for courts to suggest ways of dealing with cases more efficiently and in ways that would really incentivize lawyers to ensure that they are not contributing to the delay, and one way of doing that is using case management very effectively,” she explained, noting a case management judge can be “appointed to a particular case” and trial dates “set early, so that parties will either settle early or work diligently toward a trial.”
“But that requires additional resources, and the problem is there aren’t enough resources. Some of that could be addressed by changing rules that do not inherently promote efficiency. And Ontario certainly is looking at its rules of civil procedure to see what changes can be made to promote efficiency and to reflect modern litigation practice, but that is something that we think will need to be done across the country to help to deal with these issues,” she stressed.
Hussey also believes it’s important to “measure delay to find the root causes.”
“If we measure it, and can figure out what the causes are, we’ll be able to come up with solutions, but the solutions will certainly be multifaceted. There is not one solution to this problem and there was not just one cause for this problem either,” she said, noting that the solution cannot be “done in a piecemeal fashion.”
“The Advocate’s Society’s view is that multiple stakeholders are going to have to work together and come up with a number of solutions to change the system so that it works more efficiently,” she added, emphasizing the need for collaboration.
“We’re not laying blame at any stakeholder’s feet, but we unfortunately need to draw on everybody’s help in order to try to address this problem,” she said.
Hussey noted that since the call was issued, The Advocates’ Society has received responses from courts and other legal organizations acknowledging that this is an “important issue.”
“It’s early days, but I suspect that because this is indeed an endemic and pan-Canadian problem that we will have lots of people responding and wanting to help to ensure that this problem is remediated,” she assured.
“The Advocates’ Society is looking forward to working with other stakeholders to facilitate meaningful change and we are committed to contributing to this change,” she added.
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