The Time’s Not Right: Advocacy When a Tribunal Is Delayed or Imposes Short Timelines

A professional legal advocate occupies a unique position, interposed as they are between the justice system on one hand, and their client on the other. Each advocate has a duty of commitment to the client’s cause, and must resolutely pursue the client’s legitimate goals using all legal means. At the same time, the advocate is an officer of the court and must help the legal system accomplish its own objectives. The need to reconcile duties to client with duties to the law comes up frequently in the practice of law, and pervades the study of legal ethics.

The balancing act isn’t just about what the advocate does, and how they do it, it’s also about when advocacy occurs. Sometimes, a court or tribunal will require submissions on a short timeline, perhaps seemingly too quick for the advocate to do a great job for the client. More common, in Canada’s justice system, is the opposite problem – systemic delay means that it takes far longer than it seemingly should to get results for the client. What resources and ideas might help lawyers and paralegals dealing with such time-related challenges?

Dealing with Systemic Delay

Many niches of Canada’s justice system are notoriously slow. The World Justice Project ranks the systems of countries around the world. Canada ranks high overall (13^th out of 143 countries), but our lowest score, out of the 40+ components of the WJP’s index, is for delay in the civil justice system (42 points out of 100). While some of our courts and tribunals deliver timely justice, many do not. At Ontario’s Human Rights Tribunal, for example, out of the 33 decisions-on-the-merits issued in the 2023/2024 year, Tribunal Watch reports that 29 were filed more than 4 years previously. A disciplinary proceeding against a lawyer which lasted over 6 years was found by the Supreme Court of Canada to not constitute inordinate delay.

Needless to say, systemic delay complicates the efforts of lawyers to secure timely resolutions for their clients. What can be done?

• Legal Remedies Canadian law offers some legal remedies for parties who have been subject to excessive delay. A person charged with an offence, who benefits from the Charter right to be “tried within a reasonable time,” can bring an application to have the prosecution stayed. A non-criminal prosecution (e.g. for an alleged regulatory or disciplinary infraction) may become subject to dismissal as an abuse of process if the public authority delays too much, although the bar is high. The remedy of mandamus, compelling a tribunal to speed the hearing of a certain matter, is available on judicial review, although this too is rarely granted.
• Settlement is also obviously an option. Reaching an agreement will end the “slow burn” of time and money for all parties involved in a dispute. Timeliness is one of the reasons why settlement (including plea bargains and joint submissions on remedy) is the most common mechanism by which legal advocates produce results for their clients. Sometimes, however, in high-conflict cases advocates will fall into a “tunnel vision” focus on preparing for adjudication, disregarding opportunities to settle on advantageous terms. Even if one explored settlement of a case without success last month, it’s possible that new opportunities have emerged this month.
• Arbitration can be defied as privatized judging. If all parties want a resolution faster than the court or tribunal can provide one arbitration is an option. Under provincial arbitration statutes, parties can generally agree to have arbitrators decide about most legal disputes. An arbitration will typically be available much more quickly than a court date.
• Fees and Financial Arrangements In some cases, the biggest problem with systemic delay is that the client can’t afford to wait for justice. This may happen if the client is depending on a judgment or settlement to provide the money that they need to live on. In such circumstances, having to wait months or years may seem intolerable, creating pressure on the client to accept an unreasonably low settlement offer. A lawyer or paralegal may have some financial power to assuage this problem. If billing of legal fees is deferred until the matter resolves (whether or not the fee itself is contingent on the outcome), the fee will not be a source of additional financial pressure on the client. Going a step further and lending money to the client creates a conflict of interest, but at least one of Canada’s law societies takes the position that this conflict can be managed with the fully informed consent of the client.

Short Timelines

Less commonly, a court or tribunal will require an appearance, or written materials, on an uncomfortably short timeline. “Justice hurried” may be “justice buried”, if the pressure of time leads to substandard advocacy, or makes it impossible for the client and their evidence to be properly heard. For example, British Columbia’s Residential Tenancy Act creates timelines as short as 48 hours for deciding whether to seek internal review of certain administrative decisions. It has been argued that this timeframe undermines access to justice, especially in cases with literacy impediments or key evidence in the hands of a third party. How should advocates deal with such situations?

• Adjournments may be available, if an advocate can’t make a proposed hearing date or deadline. However, Ontario’s Civil Rules Review argues that excessive recourse to adjournments is a major contributor to the system’s overall slowness. Advocates should not resort too quickly to adjournment requests in these situations, especially when the client’s interest is in a speedy resolution.
• Good enough is Good Enough There is such a thing as materials that are “too perfect,” especially when there is time pressure. A factum that has been proof-read by three pairs of eyes, with every word perfectly chosen, is in one sense better than one that just gets the necessary points across. However, the latter may be functionally equivalent and available much more quickly, in which case it is superior in a more important sense. Good adjudicators know they aren’t judging writing competitions for advocates, but rather determining the real world rights of parties, so they are unlikely to rule against your client because of a typo or two.
• Good Enough is More Affordable The “quick and dirty” (albeit complete and accurate) written piece is also cheaper for the client, if you’re billing by the hour. When the client is paying for every minute, their lawyer or paralegal is ethically obliged to make file management decisions driven exclusively by the client’s interest, which includes their financial interest in paying lower fees. In appropriate cases, an advocate might have a duty to consider using AI or other technology in their practice, if it can produce cheaper and quicker results for their clients with no sacrifice of quality.
• Send for the Backups. A senior advocate might see that it’s impossible to meet a short timeline because of other demands on their time. Before requesting an adjournment, the possibility should be considered that someone else could serve the client just as well. This could be a junior in the same firm (whose abilities may be underestimated for lack of opportunities), or a “locum” from outside the firm who is pinch-hitting for a particular appearance. Inability to reconcile the advocate’s personal schedule with the demands of a tribunal process for timeliness could also be a sign that future matters (and perhaps the matter at hand) should be referred out to lawyers or paralegals with more capacity. It is ethically problematic for an advocate to keep an “inventory” of cases that they can work on whenever they like or whenever they get to them, if this means slowing justice for the client and the system.

Timeliness is a challenge not only for the Canadian justice system as a whole, but also for individual advocates who must reconcile the demands of the system with the needs of their clients, not to mention the advocate’s own need for a manageable work schedule. A creative and open-minded attitude helps one identify opportunities to produce timely justice.

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Adapted from a paper presented to the Law Society of Ontario’s Eight Minute Administrative Lawyer, March 6 2006.