An Judge’s Outcry Over Toronto’s Superior Court System

On Tuesday, in a decision called Kaptyn v. Kaptyn, Justice D.M. Brown strongly criticized virtually all parties involved in an estate dispute, who collectively claimed $4.4 million in costs arising out of a four day hearing and 14 pre-hearing motions.

Concluding the two trustees were “unable to work together in any reasonable and effective way,” Justice D.M. Brown said the competing sides “cannot reasonably expect that unlimited judicial resources are available to devote to their internecine quarrels,” adding (with apparent frustration) (i) that the Commercial List in Toronto is “chronically short of judges,” (ii) that the “scheduling of criminal trials […] has become particularly problematic” because it is “manifestly under resourced” and (iii) that “dates for one day civil motions are now being given out 8 to 9 months down the road.”

My experience has been that most counsel (and clients) in commercial disputes are rational people who try their best to resolve expensive litigation in the most cost-effective way. No one wants to pay a lawyer to argue a case that should settle. But with apparent chronic judicial shortages in Toronto, litigants should understand that dogged adherence to unreasonable positions can have serious consequences. Justice D.M. Brown ultimately only awarded the parties less than 20 percent of the costs claimed, concluding that even that amount was “quite, quite generous.”

However, cost-effective and timely resolution of disputes is also a two-way street. Three judges – Justice Pepall, Justice Nordheimer and now Justice D.M. Brown – have collectively said there is a “chronic” and “manifest” lack of judicial resources in the civil and criminal law systems in Toronto. When will adequate resources be provided? It should not take 8 to 9 months for a one day motion to be heard. Are mass dismissals of criminal charges for delay, as in R. v. Askov, the only option that will prompt a solution?

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