Forum Shopping Could Fix the Delay Problem

Forum shopping, that taboo practice in which a litigant chooses the most favourable jurisdiction to try a case, is generally looked down upon. Indeed, courts frown upon the practice even if the sole reason is to stem delay; that is, that a case can be tried faster in one jurisdiction than another. From a system-wide lens, this challenges common-sense. We need only look in the medical field, where patients can shop for medical services like MRIs, specialists, family physicians, anywhere they like. Yet the courts prefer to treat themselves as islands.

What do we look for in a justice system? One oft-repeated feature is consistency. Consistency in verdicts yield predictability and confidence in the justice system. It goes without saying that a case tried in Goderich should yield the same result in Ottawa*. Consistency in the time it takes to complete a case should be just as important. You would think this would be trite, as illustrated in the old adage “justice delayed is justice denied”. But the courts seem to say differently: that we should accept that a case in Thunder Bay can go to trial in two years, and that a case in Brampton can go to trial in four years, and forum shopping should not be used to make the two times closer.

The benefit of a free market is its ability to fill in gaps. When uber took over the taxi-market, it became markedly easier to hail a ride in every city. Gas prices move up and down according to machinations of supply and demand, both present and future. Imagine then how delay would be flattened across free-market courts: the time it takes to hear a motion in London would be the same as in Toronto would be the same as in Belleville would be the same as…

This paradise would come at a cost. Faster jurisdictions would lament further delay. Costs could increase lawyers travel (but then again, virtual courts still dominate the scene). Certain forums may be so local as to not admit a different jurisdiction (neighbours fighting over a fence line; or a local councillor stepping in doo-doo); but then again, maybe such cases are best dealt with elsewhere, for the reason of unimpeachable impartiality.

Intra-provincial forum shopping would help equalize delay times. The law of the forum would be the same; for example, there would be no difference in the law applied, and the expertise of the judge, in the same case whether it be in Welland or Perth. The difference in costs would be mitigated by virtual courts. The lawyers – decreasing in rural areas in a bit of a crisis – could come from anywhere in the province, thus increasing access to justice. With distances decreasing thanks to virtual technology, the old arguments against forum-shopping are weakened.

Perhaps, if delay was not an increasingly troubling problem – in Ontario, one requiring a complete overhaul of the civil rules, a significant funding shift from civil to criminal litigation to attempt to clear backlogs, a digitization of the courts prioritizing criminal law (and correspondingly de-prioritizing other practice areas) – then forum-shopping would be a smaller issue. And indeed for many past years forum-shopping was not-oft done, not oft-litigated, and if litigated, quickly resolved. But the phenomenon has increased precisely to mitigate against the devil of delay, not the evils of vexatious litigants. Perhaps it is time for forum-shopping to be re-visited as another tool to stem delay and build consistency across the justice system.

_______

*My apologies to those outside of Ontario; this writer’s experience is limited, and I would urge you to opine in the comments.