While the pandemic caused massive disruption, it forced courts to innovate and better adopt technology. This shift was fast in many ways but required courts to prioritize. Criminal and family law matters were dealt with most urgently – as they should have been.
Unfortunately, though, this meant other matters were delayed even more, pushed to the bottom of the list, and causing longer delays than pre-pandemic. The severity of delay-related problems is why The Advocates’ Society, a group of litigators across Canada, issued a call-to-action report entitled Delay No Longer. The Time to Act Is Now. As the report highlights, commercial disputes were among the biggest losers in the triaging done by courts.
“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 at Lawson Lundell LLP.
Rather than waiting for years to resolve their disputes, businesses often look outside the court system. Construction disputes are a prime example where quick resolution can help keep a project on track.
“The parties to construction projects are not very frequently turning to the courts and are far more often relying on alternative dispute resolution or private arbitration to deal with the disputes that arise on their projects,” says Andrew Parley at Lenczner Slaght LLP.
Some business disputes still need to use the courts – such as class actions that can involve thousands of parties. For these disputes, judges are helping to avoid a flood of cases by being more selective in the certification stage. “The courts are taking up the direction from the Supreme Court of Canada about grappling with tough legal issues and trying to decide those on an early basis, rather than letting cases drag on,” says Michelle Maniago at Borden Ladner Gervais LLP.
Lawyers often use the word “crises” when describing the state of court delays. This is not hyperbole. While efficient commercial disputes are not the courts’ main priority, this issue can’t be ignored. The proper functioning of our economy depends on it.