Date: November 2023
As litigators are aware, the civil justice system in Toronto and across most of the GTA is a mess. My routine advice to clients is that if parties are unable to settle, it may take years to “get your day in court”.
In Toronto, short motion dates are being booked into the end of 2024 (and probably 2025 at this point). It’s unacceptable.
Nearly two years ago, I posted about the use of case conferences under Rule 50.13. In certain circumstances, case conferences can be used as an alternative to short motions to reduce delay. Understanding where a case conference is appropriate is therefore very important.
An endorsement from Justice Koehnen released back in August, discusses the circumstances in which it is appropriate to award relief during a case conference as opposed to requiring a formal hearing of a motion or an application to award relief.
The endorsement underscores the urgency for a cultural shift in the legal system, and discusses how we all must explore proportional, timely, and accessible avenues for our clients.
It’s a short decision and worth the read but I thought I would share a few thoughts:
1. Justice Koehnen at paragraph 20, discusses the “motions culture” in Toronto, “where things that should be resolved in a practical way in a short conversation” are subjected to lengthy formal processes of motions or applications. I totally agree. In many cases, simply picking up the phone and speaking with opposing counsel can help clear misunderstandings, avoid useless motions, and save thousands of dollars for your client. There’s a reason I make my cellphone number easily accessible.
2. At paragraph 24, Justice Koehnen quotes Supreme Court of Canada Justice Rosalie Abella who states in part “we still conduct civil trials almost exactly the same as we did in 1906.” This quote is taken prior to the COVID-19 pandemic, however, aside from video hearings and electronic filings, the comments from Justice Abella are still applicable today.
3. At paragraph 27, Justice Koehnen references a study by the World Justice Project an independent organization founded in 2006 as a presidential initiative of the American Bar Association. In 2022, it found that Canada ranked 56 out of 140 countries when considering whether the administration of civil justice was free from unreasonable delay. It ranked 68 out of 140 when considering access and affordability of the civil justice system. For a nation that likes to describe itself as one of the best in the world, this is simply embarrassing. The overall system needs to be fixed, but in the meantime, as lawyers, we can play a huge part in facilitating the fair administration of justice.
Click here for a link to the decision.