This article originally appeared on The Lawyer’s Daily website published by LexisNexis Canada Inc.
In Ontario, particularly in Toronto and elsewhere in Canada, the availability of trial dates for civil trials of any complexity is in a crisis state, worsened by the recent Supreme Court of Canada decision in Regina v. Jordan and the very recent decision in R. v. Cody. Judicial resources that would otherwise have been available for civil trials are being directed to the criminal side to meet the time requirements laid down in Jordan.
In Toronto, civil cases requiring long trials (10 or more trial days) parties cannot obtain a trial date until all preliminaries have been concluded, including production, discovery and all motions, a process that often takes more than three years. A trial date will only then be assigned, as of now in 2019 or 2020. It can take 5 to 7 years from inception to trial.
Human nature being what it is, serious settlement discussions commonly do not commence in earnest until the trial is imminent.
The only exception is cases that qualify for the Commercial Court, where it is possible to have a trial within 12 to 18 months following the case being close to ready for trial.
This situation is unacceptable. It is an access to justice issue. Justice delayed is justice denied. There is no short or even medium term solution in sight. Drastic action is needed.
The courts have failed to seriously address the problem. Increased use of summary judgment since Hryniak has some effect. The principle of proportionality, when it is honoured, can help. Toronto judges now say that cases should not be brought in Toronto where the only connection to Toronto is the location of counsel. Band-Aid solutions are not the answer.
There are two ways to address this crisis. One requires a wholesale rethinking of the approach to civil litigation. The other is available immediately to all litigants.
Fixing the System
Ontario has never considered the approach to civil litigation that could largely eliminate the civil trial backlog. It is this. Assign a case, or significant subset of civil litigation cases, when commenced, to a judge at the outset, and give that judge, with the assistance of an assigned master, the responsibility and duty to case manage it from that point forward, including the trial at which that judge will preside.
Case management requires a pretrial conference early in the process, where a trial date is set, and a schedule that leads up to it. The assigned judge keeps counsel and the parties to that schedule. It entails a plan for examination for discovery and production supervised by the judge or master that reflects what is really necessary to ensure fairness between the parties. In a word, proportionality.
Such a process exists elsewhere. In the United States District Court for the Eastern District of Virginia (EDVA), cases move with lightning speed (known as the “Rocket Docket”), with an average of 11 months from the filing of a civil case to trial. The adage the EDVA goes by is “trial dates settle cases”, true there and true in Ontario.
The EDVA borders Washington, D.C. and has a population of 6 million, 85% of Virginia’s population.
Cases there are controlled from the outset by a judge and a magistrate judge, assigned to each case from the outset. Strict timetables are set, and local rules govern production, discovery, motions and conferences. Trial dates are set at a pretrial conference following completion of discovery, usually 4 to 8 weeks thereafter. Extensions of time and requests for adjournments are met with extreme disfavour. Trials are conducted efficiently.
Not all of this is transportable to Ontario. The EDVA is a federal, not a state court, with a smaller case load than in the wider jurisdiction of Ontario courts. But the EDVA experience shows that it is possible to solve the problem of delay with local rules, if there is a will to do so. Case management by an assigned judge at the outset is the key, most importantly the setting of a timetable that must be followed. Since every counsel knows that fixed trial dates settle cases, the back log will disappear in short order.
Such a system, particularly in Toronto, is a possible, even if partial, solution to the crisis. Unhappily, such an initiative is nowhere in sight. The will (and possibly the resources) is lacking. It is interesting that in R. v. Cody, decided this month, the Supreme Court of Canada said that “trial judges should use their case management powers to minimize delay”.
The second installment of this paper will discuss the immediately available solution, the expanded use of arbitration.
The Arbitration Alternative
Commercial cases are more and more frequently resolved by arbitration. Once largely the result of the existence of a dispute resolution clause in the commercial agreement between the parties that mandated arbitration, more recently, due to the delay in obtaining trial dates and the lottery as to who the trial judge will be, parties often opt to have a prospective, or existing, dispute arbitrated.
Given the current crisis, the time has come for counsel and parties to consider arbitration in all tort, family and other disputes that will likely go to trial and that are ready for early resolution.
The advantages of arbitration are well known. Foremost is a speedy resolution of the dispute. Where there is an agreed procedural timetable, even complex commercial disputes can be resolved in 12 to 18 months or less, including reasons. There is no reason why similar time frames cannot be achieved in tort, family and many other disputes.
Arbitration offers the ability to choose who decides, be it a one or three person tribunal. There are many lawyers at various levels of seniority who are experienced arbitrators and many retired judges available to resolve disputes in Toronto and other major centres.
Parties can and usually do agree to strict confidentiality rules to govern the proceeding.
The parties (ultimately usually the losing party) will pay for the services of the arbitrator or panel of arbitrators and the cost of the hearing facility and the reporter. But where speedy resolution is required, it is a small price to pay.
There are some disputes, such as when a party wants a jury trial, where arbitration is not suitable. Arbitration is consensual, so if there are third party proceedings, unless the third parties agree to submit the claims to arbitration, there can be no arbitration. But parties can agree to arbitrate the main dispute and leave third party proceedings in abeyance, if they can get limitation waivers.
Arbitrators are not Superior Court judges and have no inherent powers. Their jurisdiction is that given to them by the submission of the parties to arbitration. In an ongoing case, pleadings define the issues, so the question of jurisdiction rarely arises. Where the parties submit a dispute to arbitration at the outset, care must be taken that the arbitration agreement covers all aspects of the dispute sought to be arbitrated, including, in a domestic arbitration, to what extent, if at all, there will be the appeal rights provided for in the Arbitration Act.
The key to a speedy resolution in arbitration is case management from the outset by the arbitrator or the panel. The parties can choose the procedural rules that will govern the resolution of the dispute, from a summary process with resolution within a fixed time period to a full press litigation process using the Ontario Rules of Practice and Procedure. Even where the parties opt for such a process, resolution can be achieved in a far shorter time period than is currently available in Ontario.
Case management leads to many efficiencies. A hearing date will be agreed to at an early case management conference. A timetable leading up to the hearing date is set. Regular case conferences will be held, usually by telephone at a convenient time, to ensure that the schedule is being met. Production and discovery are kept to the minimum necessary. Motions are heard by the arbitrator or panel. Reasons are given quickly, within days. Since the arbitrator or panel hearing the motion conducts the hearing, there is little incentive for parties or counsel to “play games” or be obstructive.
Arbitration hearings, whether domestic or international, can be conducted efficiently, using sworn witness statements as the evidence in chief, supplemented by a short oral examination. Expert reports are delivered in advance of the hearing. The arbitrator or panel is fully briefed by the witness statements, the expert reports and agreed documents. Counsel agree to complete the hearing within the time allotted, obviating the delays inherent in finding new hearing days suitable to all. Reasons for decision follow within 1 to 3 months.
Parties have the option of appointing retired judges or from among the many experienced arbitration practitioners. The parties can then decide, with the help of the arbitrator or panel, procedure and timetable to be followed. Party autonomy is the rule in arbitration.
Arbitration cannot be a complete answer to the delays in the court system, but expanded use of arbitration can help. For parties not willing or able to endure the delays inherent in the courts, arbitration is the way to go. It need not be confined to the resolution of commercial disputes. It can, and should be, broadened to include tort, family and other civil disputes. Counsel have an obligation to make that option known to their clients. It is in their self-interest to do so, since the earlier a matter is resolved, whether by settlement, trial or hearing, the sooner it can be turned into revenue for the counsel or firm.