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.