Buying Time in the Civil Justice System

My clients, at least those who are not familiar with our civil justice system, expect a quick resolution of their case. They are often quite surprised to learn that a regular lawsuit will likely take years to run its course. What really shocks my clients though is how badly a lawsuit can become stalled when a defendant fails to comply with simple procedural steps.

After the parties exchange the claim and the defence the next step in Ontario is for the parties to compile and exchange sworn affidavits that disclose all of the documents that they have that are relevant to the lawsuit. Once these have been exchanged, the parties proceed to oral examinations where each lawyer questions the other side about the case. Needless to say, there is usually little point in proceeding to the oral examinations until the documents have been exchanged, as many of the questions at the examinations will pertain to the existing documents. As such, if a defendant fails to deliver its affidavit of documents, it can grind the lawsuit to a quick halt.

The problem is best illustrated by a recent case in which I was involved. I sent my client’s affidavit to the defendant’s lawyer in January and asked for the defendant’s affidavit and oral discovery dates. I spent the next three months following up and threatening to go to court to obtain an order requiring the defendant to comply with its procedural obligations. In April I contacted the court to obtain a motion date. The first available date was four months away, in August. August came and we obtained an order requiring the defendant to deliver the affidavit within 20 days. The court also ordered that the defendant pay my client $500 in costs (which is a fraction of the costs actually incurred by my client).

Not surprisingly, neither the affidavit nor the cheque showed up within the 20 days. I immediately scheduled another motion to enforce compliance with the first court order. Unfortunately, the first available date was not until January.

For the small, unpaid, price of $500, the defendant was been able to grind my client’s lawsuit to a halt for a year.

Why does this happen?

In my view, this type of conduct occurs due to two contributing factors. First, lawyers acting for defendants do not, generally speaking, have a vested interest in making sure the case gets to trial quickly. Additionally, lawyers practicing in Toronto know how long it takes to get court dates. I have little doubt that some lawyers are letting their clients know that a four or five month delay can be had relatively inexpensively just by defaulting on procedural obligations.

Second, it seems that the court is hesitant to sanction this behaviour using adverse cost awards. Preparing court documents for this type of motion is relatively straight forward, involves no legal research, and the matter can be argued in 20 minutes or less. It is essentially as straight forward as it gets. As a result, in my experience (both personally and sitting in court watching similar situations), the costs granted to the successful party are relatively small.

 In my next post I’ll provide my thoughts on how this situation can be fixed.