Case conferences strategic way to manage delay

This article was produced in partnership with Bogoroch & Associates

The current delay in the civil justice system has been referred to as a crisis — and it certainly is, says Alexandra Roman, associate at Bogoroch & Associates LLP.

“The delay in the civil justice system has a direct impact on medical malpractice litigation because plaintiffs simply cannot litigate matters in a timely manner,” says Roman.

Already lawsuits that grappled with delay, increased costs and years-long timelines are access to justice issues felt even more acutely by plaintiffs in medical malpractice cases. Exacerbated further by the recent COVID-19 pandemic, significant delays in scheduling trials — or even securing dates for motions, which can take over one year to be heard, in order to address procedural or legal issues throughout the course of litigation — drive up the cost of what is already a complex area of law requiring tremendous resources.

“This is an overarching systemic issue that we are currently navigating,” Roman says. “To mitigate the negative impacts, we must be strategic and pragmatic.”

Increasingly, the courts are acknowledging the backlog and seeking to proactively manage it. In a recent case conference endorsement in Miller v. Ledra et al., Justice Koehnen effectively expanded judicial discretion in the type of relief that may be granted at case conferences.

In the endorsement, he acknowledged the backlog and delay in Toronto, referring to the over one-year delay for short or long motion dates, and was critical of the motions culture in Toronto. Justice Koehnen suggested that litigants should strive to resolve issues in a practical way, by having conversations or case conferences, and to support that judges must be “free to assume greater control of the court process.” 

“Until now, the predominant practice in civil matters has tended to be to allow the parties to determine how much court time they want and how they want to use that court time. That makes the court system the only public service in which the user gets to dictate terms of use.  That approach is simply not sustainable as the current delays demonstrate,” the endorsement reads. “Individual parties are not the stewards of the justice system. Judges are. Judges must have the ability to determine, with the help of the parties, what information the judge needs, how best to get it to the judge and what procedure is proportional to the issue at hand. The parties have had that opportunity here. I am more than satisfied that awarding the relief sought on a case conference here is a fair and just way of determining the issue.”

The relief sought by the applicant — a final order — was granted without the need for the applicant to wait some 14 months or more for an application to be scheduled.

 “Overall, Justice Koehnen is being very practical and pragmatic. Case conferences, in contrast to motions, can be scheduled much faster and much more efficiently” Roman says.

Though this specific conference endorsement does not arise out of a medical malpractice action, the comments on delay and the judicial discretion in awarding relief at case conferences are significant in medical malpractice litigation, as it provides an avenue for plaintiffs to address legal and procedural issues sooner.

“Case conferences are definitely a strategic and much faster way to bring matters before a judge,” Roman notes, as opposed to scheduling a motion, in order to avoid that significant delay.

“The endorsement clearly signals that the courts are willing to be proactive about the delay, which is good news for the civil justice system as a whole and especially for plaintiffs involved in medical malpractice litigation.”