Lawyers are sounding the alarm about the backlog in court systems across Canada.
“There’s a problem. And I think it’s fair to say it’s at a crisis level,” says Hilary Book, founder of Toronto-based Book Law and a director of The Advocates’ Society, a Canada-wide organization dedicated to maintaining the role of the advocate in the administration of justice.
While delays in criminal justice matters or family law cases often capture the public’s attention, less notice is paid to delays in civil litigation, especially commercial or business disputes. Those kinds of cases may not be dealing with the infringement of people’s rights and liberties or the custody and safety of children, but they are not unimportant.
“There’s a huge societal cost to all of this. One of the primary functions of the courts is to allow businesses to function and settle disputes. When that doesn’t happen, it impacts the ability for the economy to operate,” says Craig Ferris, a partner in Lawson Lundell LLP’s dispute resolution and litigation group in Vancouver. “We pride ourselves in Canada on having a free and democratic society with world-class, gold-standard institutions. Sometimes our justice system doesn’t measure up to that, and people aren’t as keen to do business in Canada because of some of those issues.”
Ferris tells of a foreign national client trying to schedule a two-day application – a process that happens near the beginning of a lawsuit. Ferris had to book it three times, as the first two dates were bumped. That resulted in a half-year delay, which left the client questioning the impartiality of the Canadian justice system. Ferris told the client it had nothing to do with his nationality; it was just how the system operated. “It starts to degrade the perception of the quality of justice.”
Rather than having unresolved disputes, businesses often look outside the court system and consider alternatives such as mediation or arbitration. This is especially true when a dispute involves an ongoing relationship or what Thomas Sutton, a McCarthy Tétrault LLP partner and Toronto litigation and dispute resolution practice lead, calls an “intra-performance” or “inter-contractual” dispute that needs to be resolved quickly. These private justice systems are facilitated by statutes such as the International Commercial Arbitration Act, but they aren’t for everybody.
“If you’re a smaller company, you can’t afford arbitration or mediation because you’re paying one more professional [the arbitrator or the mediator] in addition to your lawyer. And you’re paying for the infrastructure our taxes are intended to pay for through the civil justice system. That creates an access-to-justice concern for small businesses.” (Besides charging for the mediator or arbitrator, alternative dispute resolution companies can also charge for room rentals or administrative fees.)
Besides the cost incurred by clients, there is also a cost to the justice system. Common law develops on the back of case law, as one decision serves as a reference or an example for the next. Sutton notes, for instance, that the law around good faith in the performance of contracts is a common law principle, “but if you have commercial parties increasingly opting out of the public system, you’ll start to get fewer cases that can act as precedents for subsequent cases.”
Quebec’s civil law system isn’t as dependent on precedent as the rest of Canada, but it does share some other commonalities with the rest of the provinces, including court delays. To avoid dragging matters out, Éric Préfontaine, a litigation partner at Osler, Hoskin & Harcourt LLP in Montreal, says he and his colleagues “do as much as possible to suggest settlements.”
He admits that getting clients to think about settling is hard, especially at the beginning when they are less open to the idea because emotions are running high. However, he points out that the time it takes for a case to go through the courts tends to negate the benefits of a possible win. He explains to them: “It’s a process that is going to take time. It will cost you a fortune to be told by a judge that you were right – and there’s no guarantee of that … and there is nothing in Quebec that you can reasonably expect to be compensated for because in Quebec [awarded] costs are very, very minimal compared to Ontario.”
One advantage Quebec does have is the settlement conference process. Run by current, retired, and supernumerary judges, they work almost like free mediation services, and as long as both parties agree to participate, Préfontaine says they are efficient, function well, and divert cases that don’t need to be heard in open court away from backlogged courts.
Nova Scotia’s court system is a bit better, at least comparatively. While there are backlogs, they aren’t as acute as in provinces like Ontario or Quebec. Ryan Baxter, a professional regulation partner at McInnes Cooper in Halifax, says that may be due, in part, to the province’s smaller size, the resources it has put into the court system, or actions such as the Nova Scotia Supreme Court adopting default positions on the format of the proceedings this year.
However, Nova Scotia’s court took a step back despite its step forward. Although electronic document filing was permitted while COVID-19 was raging, the system has reverted to paper filings, says Baxter. “The bar in Nova Scotia is optimistic and is hopeful that our judiciary will continue to explore and implement different ways of doing business that will be more efficient for the users of the judicial system.”
Nova Scotian delays still cause problems, especially for people unfamiliar with the system, such as the increasing number of self-represented litigants (SRLs). These people have not employed lawyers (often due to the costs) and are navigating the court system independently. While Baxter can’t advise SRLs if they are on the opposite side of a case from his client, he still feels obligated to them.
“I think there is an onus on all members of the legal community to extend, within the boundaries of our professional obligation, assistance to self-represented litigants. What I mean by that is that if I can give them information – not advice – on procedural issues or process issues so that they have a better understanding of how the system operates, that may preclude delay.”
The severity of delay-related problems is why The Advocates’ Society issued a call-to-action report entitled Delay No Longer. The Time To Act Is Now. It details the scope of the problem, outlines reasons why court delays – which sometimes stretch for years – cause hardships across every sector of the law, and proposes some solutions that could alleviate some of the problems.
“It’s something that our members are passionate about because it really is impacting clients across the board,” says Book.
“It’s frustrating to feel like we can’t help our clients because we can’t get into court, which not only means we can’t argue cases in court, but it also makes settlements more difficult because oftentimes an impending court date is what spurs people to try to settle things. And if there’s no court date for a year and a half, then you spend a year and a half waiting for something.”
To address the issues of delays, the report suggests gathering accurate data about just how bad the delays are, setting improvement targets, and tracking how well the targets are being met.
“We’re not data scientists, but one of the things that struck us is that we have a legal system that makes decisions based on evidence … [but] we don’t have a lot of good evidence, a lot of good data, about what are the different timelines, why are things getting adjourned at the last minute, where are judges being used. There’s just a lot we don’t know,” says Book.
The report also suggests relying more on technology to facilitate court interactions, including electronic document filing and scheduling systems. Another recommendation suggests revising the rules of procedures with the aim of efficiency in mind. Yet another is devoting more resources to the justice system, filling empty judicial vacancies, and ensuring enough court workers are employed to allow trials and matters to proceed. It also means getting governments to invest more in the justice system. “We’ve been unable to engage the public on investments in the justice system in a way that puts pressure on politicians to do so. They make it about lawyers, and lawyers are unpopular, and so we don’t need to invest in the justice system. But that has horrible effects on people who can’t deal with family issues, can’t deal with debt issues, can’t deal with rent issues, and just have things hanging over their head for years on end when they shouldn’t,” says Ferris.