Justice Delayed is Justice Denied
Perhaps you have heard the phrase ‘the wheels of justice turn slowly’, which is based on an expression more than a thousand years old. As a result of the pandemic, the wheels of justice have mostly stopped turning altogether. Since March, 2020, civil jury trials have been essentially non-existent in most of Ontario. There are many explanations for this, but the main reason is that our courtrooms, many of which are located in century-old courthouses, are not configured to accommodate jurors in such a way that they can maintain a 2 metre distance from one another, as required by our public health authorities. There has been some planning to create temporary courtrooms that have more space, but this is a massive logistical undertaking that is making very slow progress.
The result is a growing delay that is very concerning. At this moment, there is no firm commitment from the courts with respect to when civil jury trials will resume. Lawyers are growing very concerned about how the now eighteen month backlog will ever be cleared. We do not have enough judges to double-down on the scheduling of trials, and priority for jury trials will continue to be allocated to people charged with criminal offences who are detained in custody. Many of the judges I interact with are also very concerned about the increasing backlog, but do not have the authority themselves to resolve the problem. If I told you that our superior court judges are appointed by the federal government, and the courthouses in which they work are run by the provincial government, you’ll understand why this is such a complicated problem.
What can be done about it? For starters, dwelling on the negative doesn’t help anyone. Resilient lawyers find other ways to keep moving cases forward. Picking-up the telephone and talking to the other lawyer(s) in a case is more important that ever: a settled case does not need a trial. Judges are continuing to conduct pre-trial conferences, which are intended to help litigants reach a settlement, and these are being scheduled with more time than is normal so that the odds of a resolution are higher. Informal settlement meetings, and mediations, are also continuing to be used to find ways to settle cases on a fair and reasonable basis.
As is so often the case in life, clear communication between lawyers and clients is critical. Speaking plainly and transparently about potential timelines is very important. Providing updates to clients about the courts’ operations helps to manage the anxiety of waiting. Asking clients for their input about alternative methods of resolving their case gives them a chance to be heard and participate in the next steps their cases will take.
Optimism is contagious! Choose to believe that this pandemic will pass. In the meantime, my colleagues and I will keep you updated about when civil jury trials resume.