The system was in distress even before COVID-19 hit, argues Allison Speigel
Our civil justice system was drowning before the COVID-19 crisis hit. It was being pushed under by the weight of our overly complicated rules; a scarcity of resources; and, perhaps most importantly, a lack of innovation and willingness to change. It costs far too much and takes far too long to litigate a claim. Most Ontarians have been priced out of accessing civil justice.
When the crisis hit, the courts suspended regular operations. It is now taking the necessary steps of trying to make virtual hearings possible. This cannot happen soon enough. To do so, however, the court requires an electronic filing and case management system and appropriate telephone and video conferencing facilities. The Ministry of the Attorney General must provide the necessary resources to make this possible. Undoubtedly, spending money on the civil justice system is less enticing than spending money on issues that voters better understand and, thus, care more about. The problem is that by the time voters realize that a functioning economy requires a functioning civil justice system, it will be too late. If the COVID-19 crisis has taught us anything, it is that an ounce of prevention is worth a pound of cure. It is time for the government to act – even if it is not politically expedient to do so.
The ability to conduct virtual hearings is not enough.
At this point, more than one month of court time has largely been lost. When the court reopens, criminal and family matters will undoubtedly be given precedence and civil matters will, again, be relegated to last place. If it took six months to get a court date before the crisis, how long will it take to get one when the court reopens? A year? 18 months? Even with virtual hearings, how can actions proceed in any meaningful way if it is impossible to get before the court in a timely manner?
The civil justice must make drastic changes if there is any chance of it being able to function meaningfully when this crisis abates.
Motions in writing
A vast majority of motions should be heard in writing, regardless of who consents. This would reduce court time, lower litigation costs and decrease the length of proceedings. If, after reading the materials, the court requires oral submissions, it can order that they be made by way of telephone or video conference. The only exceptions should be for those who cannot access the necessary technology. There is no reason why written advocacy cannot be as effective as oral advocacy.
Case management
One-judge case management is hugely beneficial. It reduces the time that litigants must spend getting the court up-to-speed on a matter. It also helps to reduce gamesmanship and delay. Often, litigants can abuse our system because the extent of the abuse is only evident when an individual step is viewed in the context of everything that took place before it. If the court were given a front row seat to see how many games were being played, fewer games would be played.
Case management makes it easier to anticipate how the court may rule on procedural issues and, thus, (hopefully) reduce the number of motions being brought.
If case management is not feasible, then, at the very least, parties should be able to quickly access a decision maker via 9:30 a.m. telephone or video appearance. Cost effective litigation should not be restricted to those who can access the commercial list.
A culture shift
Too often, parties are allowed to flout the Rules in the name of justice (endless adjournments, leave to issue third-party claims and expert reports at the last minute, etc.). The rationale is always the same: if prejudice can be compensated by costs, justice requires that parties be given every opportunity to present their case in full. This would make sense if costs awards actually compensated parties in full. Unfortunately, they rarely do.
Moreover, although the words are often spoken, it is time for them to actually sink in: "justice delayed is justice denied."
If parties were required to abide by a defined set of rules without endless exceptions, actions would be less costly and move faster. We must stop striving to achieve perfect justice for the few that can access the system at the expense of good justice for all those who cannot.
Summary judgment
The Supreme Court of Canada recognized the need for a culture shift and identified summary judgments as one way to accomplish it. Six years later, the court still does not seem keen to fully embrace them.
Why?
Most often, proceeding to trial is economically irrational. This is, after all, why so many cases settle. Forcing parties to accept bad settlements by making the prospect of trial even less appealing does not equate to justice.
Summary judgments, though potentially less than perfect, make it possible for an impartial third party to resolve disputes at a more reasonable cost (i.e. the very thing that litigants seek). They also save court time and would reduce the number of virtual trials. They should be available in all but the most exceptional cases.
Bear in mind that the civil justice system's one and only goal is to deliver justice to all those who seek it. If it is failing to do that, it matters little how grand our traditions are, how seriously we take ourselves, or how much we wish everything could remain the same.
If we refuse to use this unprecedented moment in history to affect real change, we risk learning what our society and the economy will look like when people wake up and realize that we do not have a functioning civil justice system.
Allison Speigel is a commercial litigator with Mississauga-based Speigel Nichols Fox LLP.
