The Ontario civil justice system is struggling to provide timely, cost-effective and fair access to justice to civil litigants. According to Justice D.M. Brown, if the Judges of the Superior Court are unable to respond to the challenges and stresses confronting the civil litigation system, the public system risks losing litigants to the private-sector justice system in which an ever increasing number of private arbitration centres offer parties dispute-resolution services employing modern technological systems and well-trained arbitrators, who are often retired Superior Court Judges.
Justice Brown used the decision of George Weston Ltd. v. Domtar Inc. to once again sound off on the problems facing the Ontario civil justice system. His Honour has been voicing these concerns for some time now, but, unfortunately, most litigators practicing in the Toronto area will likely tell you that the situation is getting worse, not better.
The crux of the problem, according to Justice Brown, is that the demand for judicial time exceeds available supply. This is compounded by the fact that the court lacks modern administrative infrastructure including, for example, proper electronic case management and document filing technologies, which results in the inefficient use of judicial and litigant time. As a result of the scarce judicial resources, judges must make decisions about how to best use these resources if the public system wants to maintain its position as the primary system in adjudicating civil disputes and in driving the development of civil case law.
The goal? Find ways to manage civil litigation more efficiently, to ensure that the fundamental objective of a fair, fast and affordable final determination on the merits is met, and that intolerable delays in the adjudication of civil disputes do not become the norm.
According to Justice Brown, there is a "motions culture" in the Toronto Region which consumes court time with process-related motions instead of proceeding to a timely final determination of a case on the merits. For example, Justice Brown points out that counsel prefer to wait nine months to obtain a hearing date for a full day summary judgment motion instead of accepting a trial date three months down the road – a point that leads me off on a personal tangent…
A few weeks ago I was in summary judgment motion scheduling court before Madam Justice Low. There were 21 items on the docket that day. My matter was 21st, which meant I had the distinct pleasure of sitting through almost every other matter.
On three different occasions Justice Low offered counsel a trial date that was earlier than the first available motion date. On all three occasions counsel insisted that they wanted the motion date instead of the trial date, much to Justice Low's dismay. Justice Low asked why counsel did not want the earlier trial date. No one was able to provide a reasonable response. The best answer, that I can recall, was that "counsel have agreed that a motion would be the most efficient way to proceed with this matter". In fairness to counsel, most lawyers do not appear in motion scheduling court and expect to be offered a trial date. However, not one lawyer asked to make a phone call to get instructions from their client. Which leads me back to Justice Brown and George Weston.
The George Weston decision dealt with two cases in which motions were brought to strike out motions for summary judgment. Justice Brown encouraged Judges to use the tools given to them, namely the Rules of Civil Procedure and the inherent jurisdiction of the court, to drill down and question whether certain summary judgment motions are appropriate, given the nature and progress of the particular lawsuit. If, in the court's opinion, scheduling the summary judgment motion would not be a prudent use of judicial resources, Judges should be prepared to refuse to schedule the motion.
In George Weston Justice Brown refused to schedule either of the two motions for summary judgment. He did, however, set a timetable to expedite the two matters towards a trial, and towards the civil system's goal of ensuring a fair, fast and affordable final determination of the lawsuit on its merits.