Three Real Life Examples That Our Civil Justice System Is Broken

I’ve written a few posts recently about access to justice and the current flaws in our system. In the past month those flaws have reared their ugly head in my practice.

1. Where are your Documents?

I act for the plaintiff. In mid-August I sent my client’s productions to opposing counsel and requested his client’s productions and discovery dates. Between mid-August and mid-November I followed up on eight separate occasions. I was given a variety of excuses that “the documents were coming” / “meeting with my client next week” / “should have them for you next week”. Alas, they never came and I had no choice but to schedule a motion. When we contacted the Toronto court for a date for a 20 minute motion, we were given a date in mid-March, four months away. Sadly, by the time we get to court the defendant will have been able to successfully stall this lawsuit for 2/3 of a year.

2. No Judge Available Despite 8 Months of Waiting 

I act for the defendants, who reside in the USA. They were sued in Ontario by an Ontario corporation. I was instructed to bring a motion to have the lawsuit dismissed on the basis that Ontario has no jurisdiction over the subject matter and that the lawsuit ought to be brought in the State in which my clients reside. A “long” motion (anything over an hour is considered long) was scheduled back in the Spring. We were given a set time on a set date in December for three hours of argument. After waiting almost eight months for our motion date we were advised by the court on the morning before the scheduled date that no judge would be available and that the motion would need to be rescheduled into 2013.

3. No Judge Available Despite 23 Months of Waiting

We act for the plaintiff. In January, 2011 we set our matter down for trial – in other words, we advised the court we were ready for trial and wanted a trial date. Our trial was subsequently placed on the trial list for November, 2012. We were number one on the list, meaning that we would be called first out of all the trials scheduled for November. The list was scheduled to run over three weeks. Our trial was scheduled to last two weeks. We expected to start on the first day of the trial sittings. We did not start on the first day, or the second, or the third, or the fourth. We were told no judge was available and we were on standby. We also found out that we were not just number one on the list, we were the ONLY trial on the list. As the days passed it became apparent that we would not be able to start and finish our trial before the November sittings list would come to an end and that an adjournment would be inevitable. We are now scheduled to go to trial in November, 2013…. if someone can find us a judge.


  1. Matt,

    Problem 1 shouldn’t have been a problem, albeit to avoid it you have to have all of your ducks in order. I appreciate you might have been trying to practice in the most cost-efficient, practical way for your client.

    a. That long for a motion before a Master in Toronto for that sort of short motion? That’s unusual (I think) but I’m open to being told I’m wrong.

    b. Regardless, taking your facts as given and assuming everything else was in place so that, under the rules, the defendant’s affidavit of documents and productions were due – you could have used the motion in writing rule: Rule 37.12.1(4). Then let the defendant explain the delay.

    Problem 2. One solution is to expand Rule 37.12.1(4) by eliminating the “where the issues of fact and law are not complex” preamble so that any motion can be in writing unless the respondent objects (but if it does there will be a cost consequence if the court finds the motion ought to have been handled in writing). This would, in practice, move us toward the US system where most pre-trial motions are handled in writing. It would also mean that most lawyers would have to attempt to have some idea of the law that’s applicable to the motion (because their arguments will be in writing for posterity).

    Problem 3. If the ONCA is going insist, in substance, that everything goes to trial unless it’s axiomatic that one side’s position is doomed to fail, we need more judges. That means more tax dollars.

    On the other hand, if all of the evidence admissibility issues had been sorted out before trial by motion in writing – the US system – and all of the witnesses that either side knew they might call had been available for pretrial deposition and everybody conceivably important had been examined- again the American system – then perhaps your trial and all of the other trials wouldn’t have been as long, or have been resolved for whatever reason because the lawyers knew what the evidence would likely be, so there’d have been judges … etc.

    But that would increase the cost (to litigants) of their own lawyers.

    Hmmm…. I guess some of us shouldn’t complain about that, though that does create access to justice issues.


  2. David,

    Problem 1.

    a. Sadly, yes. Sometimes you get lucky and the window is a bit shorter, but at the moment the norm is to be waiting 3, sometimes 4, months for a motion date. Obviously this varies depending on if you’re asking for 15 minutes as opposed to an hour, but it is still a substantial wait. Part of the problem is that some of the Masters were assigned to replace the Bankruptcy Registrars, the Masters recently had their staff cut, and now they shuttle one or more Masters out to Newmarket and Brampton (I’ve heard) to do some work there as well.

    b. Interesting. To be honest it is not something I had ever considered. Have you done this much? I’m curious as to the procedure. If the defendant wanted to make oral argument does that then mean we have to wait 3 months again to get a date for oral argument? It is also unfortunate that facta are necessary as it is another additional cost to the client, but I can understand the theory behind the requirement.

    Problems 2 and 3

    Interesting points.

  3. I’ve never had to follow through on the threat of the motion in writing where the other side was in default on the affidavit of documents and productions. The cost to the client should be less than having to attend and wait. The material is the same other than what should be very short factum.

    As to the defendant asking for oral argument, if you’ve complied with the rules and the defendant hasn’t, the competent lawyers won’t. They’ll send you something. The other lawyers? You have the costs sanctions Rule. You’ll just have to be prepared to use it and hope the Master will.