This was the title of a paper delivered by Mr Justice David Brown at the OBA Civil Litigation and Insurance Sections End of Term Dinner held 11 June 2014.
It addresses why our system is not achieving its fundamental goal of achieving fair, timely and cost-effective determination of civil cases on their merits.
The paper is in three parts: symptoms, causes and the remedies needed to unleash institutional ability and skills so that the Ontario Superior Court of Justice is the best trial court in North America.
You can read it here – 2014.OBA.Civil.end.term.paper.june.14
Among other things, the paper sends a warning to the Bar.
Delay and cost have resulted not only in the “vanishing trial”but the “vanishing civil litigator”. The emergence of a motions culture signals, “a growing inability of counsel to discern the wheat from the chaff in any particular piece of litigation, with the result that counsel are placing unreasonable demands on judicial time to deal with peripheral issues”.
The author ends with this sobering message:
“The Bar, including organizations such as the Ontario Bar Association, needs to start thinking about such a radical re-construction and to pose some of the questions I have identified, not only for the betterment of our public civil justice system, but for the Bar’s own self-preservation. The sands upon which our system of justice rests are beginning to experience a tectonic shift, and I suspect they will shift with increasing speed over the next 10 years.”