The Legal Ethics of Delay

Canada has one of the world’s better justice systems, according to the World Justice Project Rule of Law Index. We are ranked 12th out of 140 world countries by the WJP. Delay, however, is a major Achilles’ Heel. (1)  

  • When it comes to providing timely justice in civil matters, Canada ranks only 56th worldwide according to the WJP Index. We received a failing grade of 47% for this, the lowest among 44 sub-factor scores for Canada. In Ontario, for example, the average civil trial occurs over five years after the Statement of Claim was delivered. 
  • Some administrative tribunals provide very timely justice, but many do not. In Ontario, it has recently taken over 7 months to get a hearing at the Landlord and Tenant Board, and years to get before the Human Rights Tribunal. 
  • On the criminal side, 27% of Superior Court cases nationwide had been open for more than 18 months in 2017-2018. Timeliness has improved somewhat as a result of the Supreme Court of Canada’s imposition in 2016 of hard timelines on criminal prosecutions in R. v. Jordan. However, that success has come at a price. Already by 2019, over 800 criminal cases had been thrown out due to delay. At least half of these would probably have resulted in a finding of guilt, (2) but instead they were dismissed for delay. The public lost the chance in each of those to deter, rehabilitate, denounce, and accomplish the other legitimate goals served by conviction and sentencing of guilty people. 

Where Does the Fault Lie? 

The state bears fault for this situation. Governments have not always kept courts and adjudicative tribunals staffed up, which inevitably creates backlogs and delays. Judges and adjudicators have themselves been accused of unreasonably delaying the release of judgments, or being indifferent to parties’ delaying tactics. 

But what about individual lawyers and paralegals, representing clients in contested matters? Delay, I believe, is a legal ethics issue as well as a public policy and systemic issue. It should be clearly understood that advocates, as officers of the courts and tribunals before which they appear, have an obligation to help the system do its work in a timely way. What makes this challenging is that both client interests, and lawyers’ own interests, can push us away from this duty. 

When Clients Gain from Delay 

Some clients have reasons to delay litigation. Defendants and respondents often know that they will give up money, or their freedom, or something else of value to them the end of the case. The longer the matter takes, the longer some defendants get to keep something they value. Police officers accused of misconduct, for example, are often suspended with pay, at a six-figure salary, pending the final hearing of their matters. If an officer in this position expects to be terminated after that hearing, then every month that it can be delayed produces a benefit worth thousands of dollars to them. In criminal matters, some observers suggest that some defendants engage in “tactical delay.”  

In civil or family matters, delay places pressure on plaintiffs or applicants to settle for pennies on the dollars that they are actually owed. Think here of a critically injured personal injury plaintiff, or a homemaker spouse in a family law case. If you are in a bad financial situation, can you hold out years to get what you are actually owed? Or will you take the lowball offer cheque that you can cash tomorrow? 

Legally experienced defendants know this, and the unscrupulous ones are not afraid to take advantage of it. While courts can punish intentional defence delay with cost awards, such consequences are often very mild. A similar dynamic is seen in administrative tribunals that deal with benefits (such as BC’s Civil Resolution Tribunal or Ontario’s License Appeals Tribunal for automobile accident benefits).  

In any type of litigation, a lawyer or paralegal will have opportunities to help their clients out by slowing matters down if that’s what the client wants. However, doing so is unethical and may constitute professional misconduct. The Rules of Professional conduct state that “in civil proceedings, a lawyer should avoid and discourage the client from resorting to …. tactics that will merely delay.” (Model Code Rule 5.1-1, Commentary 8). It is interesting that this provision explicitly excludes non-civil matters. Regulators might want to reconsider whether lawyers of any kind should engage in encourage delay tactics. 

In any case the Rules already say that all lawyers acting as advocates must “promot[e] the parties’ right to a fair hearing in which justice can be done.” (Rule 5.1-1, Commentary 1). This seems to mean that a lawyer, including a defence lawyer, must promote not only their own client’s interest, but rather the interest of all parties in a fair hearing. Delay makes it harder for justice to be done, among other reasons because evidence tends to become less reliable. 

Lawyers’ and Paralegals’ Own Incentives 

In some cases, it is the interests of advocates themselves, not those of their clients, that might tempt them to exacerbate delay. Those who bill by the hour may be rewarded with higher fees if their cases drag on. Successful professionals who have plenty of other things to work on may not be swayed by this. However, the perverse financial incentive to delay is not insignificant for those who might not have other sources of income once a certain big case ends. One attraction of contingency and flat fee billing models is that they align the lawyer’s financial incentives with a reasonably quick resolution. 

Another temptation for advocates, which contributes to delay, is taking on too many clients. The busier you are, the more likely it is that you will be the reason why court dates, mediations, etc. cannot be scheduled for months or years. In one September 2023 criminal hearing in a southwestern Ontario courthouse, the accused was incarcerated, having been denied bail. The Court was seeking to schedule a defence Charter motion to exclude evidence, as well as a five-day jury trial. The Court and the Crown had dates available as early as the next month (October). However, the defence lawyer had an extremely busy schedule – just on that morning’s 9am docket he had five separate clients.  

He had to refuse dates offered going well into next year, due to other trials he had scheduled. They finally agreed upon a date in June 2024. However, it seemed to at least one experienced observer that, with a less busy defence lawyer, the accused might have had his Charter motion heard within a month and, if successful, he might have been free in two months. 

The Rules require lawyers to “make every effort to provide timely service to the client.” If a lawyer foresees “undue delay in providing advice or services,” the lawyer must inform the client of options including retaining new counsel (Rule 3.1-2, Commentary 12). You might have to talk them out of the idea that you are the only one who can do a good job for them.  

Declining retainers when you lack the capacity for timely service is not just a duty to clients, but also part of the duty to the legal system itself identified above — promoting fair and substantive hearings in which justice can be done. Having colleagues who can take over for a date if necessary is one way to say “yes” to a would-be client without letting your other obligations slow down the resolution of their matter. These colleagues might be members of your firm, but they might also be on a “locum” contract that lets them help temporarily without taking over the matter.  

Improving the timeliness of Canadian justice is essential. Governments, courts, and tribunals must step up. But advocates who work in contested matters should also recognize that contributing to timely justice is an ethical imperative, not only for clients but also to promote the functioning of the legal system itself.  


(1) Achilles, according to Greek mythology, was a mighty warrior who had one critical weakness. As a baby, Achilles had been dipped by his mother in the River Styx, which made him invulnerable. However Mom had to hold him by the heel, above the water, when she did so. And so any blow to the back of his foot could kill him. An “Achilles’ Heel” is a vulnerability in a person or thing which is otherwise very strong. 

(2) Of all the cases that were actually completed in 2020-2021, one half resulted in a finding of guilt according to Statistics Canada:  


  1. Delay is one of the problems that have been discussed interminably. It’s a symptom, of something deeper. The tolerance by everyone of a system designed to preferentially serve certain interests. Privileged interests, starting with the legal profession itself.

    I’d like to see an article here on slaw that steps back and looks at the whole picture. Here’s another piece of the picture. Below this column on the front page, published yesterday, is a book review.

    The title of the book is, “Drafting, Interpreting and Applying Legislation”. Legislation is drafted by specialists – lawyers, members of the privileged legal establishment. There’s an inherent bias. An uninformed public is naive not to look closely at what is going on there.

    In 2008 John Mark Keyes and others in the drafting community asked the right question: “Who *really* writes the law?” –

    The fear is that the public is going to see how important questions like that are. In the wonderful film, The Wizard of Oz, while the Wizard is striking fear into Dorothy and her three friends, her little dog Toto pulls back a curtain to reveal a man pressing buttons and pulling levers. He shouts into the microphone, “pay no attention to the man behind the curtain”. If there was one key moment in the story, that was it. In the real world we haven’t quite reached that moment yet. But I think we will.

  2. Robert Richardson

    Your final note indicates that of all the cases completed in 21/22 one half resulted in a finding of guilt. What is not mentioned in that statement is that the majority of those found guilty were detained or did not receive bail and subsequently pled guilty. Any lawyer that practices criminal defence will be able to advise of those in the system that plead guilty to simply get out of jail. Many of these accused plead guilty knowing that to have a trial in their matter would mean a longer stint (months to years) in jail than simply pleading guilty. On the criminal side, the delay in the system seems designed to encourage pleas of guilt, for if everyone took their matter to trial the system would be even further backlogged than it currently is. To say that people who’s case is thrown out due to delay deprive society in someway of the benefits of a finding of guilt belies a failure to understand the effects being under charge, either on release or in pretrial custody has on our clients. The guidelines in Jordan are insanely long. The idea that waiting for 18 months for your matter to come to trial is acceptable, particularly for a person in pretrial custody denotes a lack of understanding of the effects of being under charge on the accused, their families and the communities from which they come. I deal with lawyers every day in the courts and while there is always a bad apple somewhere, for the most part they are caring compassionate people looking to assist their clients to assert their rights to timely justice. While there are many inefficiencies and problems in the court system, I think lawyers engaging in delay tactics, especially in criminal trials is at the bottom.

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