Trying Times For Civil Trials

It is no secret that in terms of the public’s ability to predictably have their private civil disputes tried in court, the covid-19 pandemic was the straw that broke the camel’s back.  The strain had been there for years, with delays in reaching trial becoming increasingly common.  Indeed, in my blog from late 2019, which was written immediately pre-covid, I specifically addressed pressures on our judicial system that were already creating delays.

Now, in February 2023, where do we stand, at least in the South West judicial region of Ontario, where I practice?

  • We have three judicial vacancies in our region which haven’t been filled.   It is a lot to ask of the current compliment of judges to handle the load on their plates without those missing three judges.
  • The three judicial vacancies relate to our region’s assigned allotment of judges.  The reality is that while our region’s population has been rapidly growing – among the fastest pace in Ontario in recent years – our compliment of assigned judges has not been increased.  More people means more court cases, as simple as that, and so the judicial workload has increased without any increase in the judicial bodies appointed to adjudicate those disputes and oversee the court process.
  • The pressures that I spoke of in my earlier blog with respect to criminal law demands have only increased during the pandemic, putting a further strain on the Superior Court.  It is for good reason that courts must be aware of the need for timely trials for those people accused of crimes, but the reality is that this necessary priority pushes civil cases farther down the list.  The pandemic has also added however an enormous backlog of matrimonial cases.  In some respects, those family law disputes also demand quicker action as the lives of families, children,  and parents  remain in limbo without access to the courts.
  • Our region has become so notably behind on its ability to offer civil trials that a pilot non-jury civil trial blitz has been arranged by the Chief Justice of the Superior Court, Justice Morawetz, to be initiated in our region during 2023.  Through the power of technology, and given the advances the whole legal profession has undergone during the pandemic, three trial judges who sit in regions outside of the South West Ontario region will be assigned to help clear up the backlog of civil cases in the South West Region.  My understanding is that the following framework applies:
    • We will only have these three additional judges available to us for a four-week block of time.
    • The entire trial must be conducted virtually
    • Only non-jury trials will participate in this trial blitz (one can imagine how much more challenging it would be, logistically, if the case involved a jury)
    • Existing cases will be screened by the court itself.  There won’t be an opportunity to “apply” to be on the blitz list;  rather, one would be invited onto the list.  The court will look at cases currently scheduled in the September to December 2023 time frame for inclusion on the blitz list.
    • Once invited, all parties will have to agree that the case can be conducted virtually and that it will not require more than 19 sitting days in court (four weeks).
    • It is hoped that just having the pressure of trial will prompt some of the cases on the blitz list to resolve.  In fact, if just three, four-week cases were called to trial and proceeded through to the end of their trials, only three cases would get resolved during the blitz, so to have any real effect, the blitz would also have to create the trial pressures on other cases, forcing them to settle, to have a meaningful impact
  • I am telling my clients that if I am appearing in assignment court today to get a trial date, I do not expect anything to be scheduled until 2024, and even then, there is, unfortunately, a very real prospect that a trial that had been scheduled doesn’t actually get called in during its assigned trial sitting.

While there are a couple of incremental fixes on the horizon, sadly, I fully expect that the civil trial backlog in our region will continue for quite some time.  My clients will continue to experience the realities of the old maxim  “justice delayed, is justice denied”.

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