Buying Time in the Civil Justice System Part 2

My last post discussed how parties are able to essentially “buy time” in our civil justice system. By simply refusing to carry out the next procedural step, defendants can relatively easily grind a proceeding to a halt for a year. The cost sanctions against first offenders on relatively straight forward procedural motions are often light.

I identified what I believe to be two contributing factors which enables this to occur. The first is that lawyers practicing in Toronto know that it takes a long time to get a court date. The second is that the court seems hesitant to sanction this behaviour using adverse cost awards. In my opinion both of these factors must be addressed in order to remedy the problem.

Litigants need to be able to get into court more quickly. Defendants need to know that defaulting on procedural obligations will only buy them a small delay, not a large one. Judicial resources are scarce, and that is not going to change any time soon. However, from an administrative perspective, things can be done to alleviate the back log.

As an example, the current system of booking motions is, in my opinion, ineffective. The moving party emails the court to ask for available dates. Within a day or two the court emails back and lists some potential dates. Counsel then confer, as they are required to, on dates. Eventually, the moving party will email the court again to book a date. Sometimes, while all of this back and forth is taking place the dates initially provided by the court fill up, and the process starts again from scratch. A web-based calendar, similar to what is found at Mediatordates.com would go a long way in simplifying the process and making it more efficient.

Secondly, there needs to be financial deterrence. The court ought to be prepared, in cases where it is clear that the defendant is simply delaying, to increase the costs awarded. In the example in my previous post, no affidavit of documents was delivered, no responding materials were prepared, and counsel for the defendant did not show up for the motion (having been instructed to not oppose). In my view, the court should be prepared to award substantial, or full costs in situations like this. If there is a bona fide reason why the defendant has not been able to comply with its procedural obligations then the defendant is at liberty to deliver materials to explain itself.

Maybe there are better solutions, and perhaps these solutions cannot be implemented without causing other additional problems. However, I provide them simply as examples of things that can be changed.

The fact of the matter is that as long as defendants know that they can buy substantial delays for insignificant sums, the trend will, in my view, continue.

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Comments

  1. Great posts!

    The lack of online booking is an outrageous scandal.

    But I think your second point is a bit tougher. One problem with using costs awards is that it’s hard to determine the extent to which a given delay should be blamed on the party, or blamed on the party’s lawyer. A cost award assessed against the party is unfair if the delay was the lawyer’s fault. Conversely, a cost award assessed against the lawyer personally is unfair if the delay is the client’s fault, but the lawyer cannot say so because of solicitor-client privilege. How do courts deal with this dilemma?

  2. I would think the easiest solutions would be for Ontario (and Toronto specifically) to bring in a bunch of Masters to solely hear chambers applications. While Toronto is obviously significantly bigger than Calgary, I can literally walk into chambers here without an appointment (assuming appropriate notice was served) any day of the week for a needed motion. The list starts at 10am and goes till it’s finished. Additionally, because there are a very small number of Masters and all simple stuff must go through them, they know all the litigators in the city. As a result, lawyers with a reputation for unnecessary don’t get to use the ‘first time offender’ card every single case.

    It doesn’t even take that many; all of Southern Alberta gets by with 4 Masters.

  3. Noel: I’d argue the client vs lawyer differentiation isn’t particularly relevant in this case and the costs should be against the client.

    1) If the client was the cause, it’s fair they pay.
    2) If the lawyer advised the client to delay using this tactic, it was the client’s decision and it’s fair they pay (if full indemnity costs because standard, it will certainly factor into such a decision).
    3) If it’s truly the lawyer’s fault, then the client should/will eat the lawyer alive and make them pay it (or file a complaint with the Society for negligence).

  4. I think your analysis depends on the client being sophisticated.

    Re #2, if the client is unsophisticated and has little or no experience with litigation (e.g. family, estates, immigration clients) then we can’t assume that (s)he is able to intelligently scrutinize the lawyer’s recommendation of a delay tactic. If the client can’t intelligently scrutinize it before accepting it, then it’s not fair to hold her financially responsible for its consequences.

    Re #3, An unsophisticated individual client is often in a position of dependency relative to the lawyer and cannot “eat the lawyer alive.” The client is not in a position to discipline the lawyer by threatening to terminate the retainer, because (s)he has no ongoing need for legal services. The unsophisticated client may well also be ignorant of the regulatory complaint option. In any case, in the aftermath of a law suit, the unsophisticated client is often confused about why she is required to pay costs and what role delay played in that award.

  5. m. diane kindree

    I like where this post and Ryan’s comments are heading which is solving a problem. I think court appointed Masters would be the ideal marshalls in Family Law. This is where both the lawyer and client can present their own records and documentation outlining why the delays in filings have or have not been necessary. In some cases it may actually be a a no-win situation or 50/50 draw. What is great about this approach is that the Masters will become very familiar with those individual’s who need a reason (cost sanctions) to get their act together.

    You may buy time but you could be ruining your health according to Karin Huffer, M.S., M.F.T. . In her book entitled “Legal Abuse Syndrome” she has outlined the complications to one’s health of protracted civil litigation: a cumulative Post Traumatic Stress Disorder.
    I agree that the courts needs to get tougher to cure this legal malady.

  6. Fair points Noel, though I respectfully disagree.

    We allow people to make major decisions they aren’t qualified to make every day and they are held responsible for them. The biggest would be choosing among treatment options for various diseases. Choosing wrong can cost you, or some one you care about, their life. Monetarily, we let people borrow huge sums of money to purchase property. If it drops, they could be left bankrupt on the street. In both cases, the average (or even above average) individual has no formal knowledge that qualifies them to make such a decision, but we as a society have decided to let them do so and they are the ones that must live with the outcome.

    Given that, I don’t think it’s unreasonable to hold someone responsible for a legal decision they made, especially when they were being advised by counsel.

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