Sometimes, during the course of a personal injury case, your lawyer will need to attend Court. But it’s neither for your trial, nor for pre-trial. It’s not even to set a date for trial, or to advise the Judge about the status of the case or readiness for trial.
The purpose of going to Court is because your personal injury lawyer will need something that only a Judge’s order can secure. Or, perhaps the Plaintiff lawyer and the Defendant lawyer cannot agree on how the case should move forward causing the case to be at a standstill. Whatever the reason for attending at Court, these interlocutory steps are just that. They are not the trial. They are intermediate steps which are common in personal injury cases. These interlocutory steps are called “motions”. You may hear a lawyer say that they “need to bring a motion“. This is exactly what they are referring to.
Civil motions Court across Ontario are backlogged. It’s nobody’s fault. This is just the reality of dealing with a chronically underfunded and over subscribed system. We have no statistics to support this statement, but we would guesstimate that the majority of civil motions relate to personal injury cases. The most common motions we see are motions for/relating to:
- Motion for substituted service of Pleadings on a Defendant
- Motion to Extend the time for service of the Statement of Claim (related to the motion for substituted service)
- Motion to Amend the Pleadings
- 30.10 Motion to compel a party to produce records (which they haven’t produced despite repeated requests)
- Undertakings/Refusals Motion
- Motion to Add/substitute a Party to the Statement of Claim, or to add a Statutory Defendant
The vast majority of these motions (save for the undertakings/refusals motions) are often unopposed. That means that the responding party to the motion does not take a position and thus, does not contest the relief being sought by the moving party.
Here’s the problem. It takes a long time for the Judge or Associate Judge to vet their list of motions for their day in motions Court. The Judge will have a long list of matters that day. Some of the matters are straight forward, unopposed or motions on consent. A few motions will be opposed motions which require oral submissions, time and debate. Those opposed motions can take a few hours to be heard; and rightfully so.
But most motions don’t require as much Court time. They ought to be heard quickly and efficiently so that the Court can free up their time and resources on more pressing matters.
Here’s the nice thing: Courts have gone virtual as a result of the COVID Pandemic. It’s one of the nice changes we’ve seen. So, instead of lawyers packing themselves into a Courtroom, and spending time commuting to/from the Courthouse, paying for parking, billing for travel time; they are now in and out of the virtual Courtroom as soon as their matter is called and done. This saves everyone time and money. These savings are passed along to the client to make litigation that much more affordable. Any saving is a good saving in a very expensive litigation environment.
- The Court should make a list of matters which don’t need to be heard by a Judge or Associate Judge. Why is it that a Registrar can sign off on a dismissal Order, or an Order to Continue; but cannot sign an Order on an unopposed or consent motion to amend the Pleadings or for substituted service? If Registrars were granted this power, it would free up judicial resources which can be directed elsewhere. Judges don’t have to waste their time on these trivial matters. They have enough on their plates as it is.
- The Registrar can hear these consent matters, and unopposed matters once or twice a week; and they are all done over the counter, without necessitating an attendance from a lawyer or articling student. If that offends the litigators out there who value getting up in front of a Judge and saying “I have a draft Consent Order for the Court’s consideration“, then perhaps there could be an attendance on a predetermined date of the week where only consent or unopposed relief is being sought. Let’s say every Monday and Wednesday Registrar’s sign off on Orders. The point is not to mix opposed matters (which require a Judge), with unopposed or consent matters (which don’t require much in terms of debate or submissions. Often, these motions don’t require any submissions at all!). Let’s get these matters off the Court’s dockets to free up space.
- If the Registrar isn’t satisfied with the content of the motion record, the content of the Draft Order, or does not believe that the relief being sought fits under their purview, then the matter is assigned to normal motions Court.
It’s wonderful that these motions are being heard virtually. But, given the demands place on an already over burdened civil justice system, we need to be even more aggressive to preserve judicial resources and to get matters moving forward. Granting more power to the Registrar, or simply dividing the opposed matters, from the unopposed and consent matters is a great step to keep matters moving forward at a decent pace. Do you really think that Judges because Judges to hear unopposed motions to amend Statements of Claim and motions for substituted service all day long? Not at all.
Finally, on the topic of substituted service, if Judges and Associate Judges were harsher on insurers for refusing to accept service, these motions would not be necessary at all! If there are no coverage issues, then why don’t insurers do everyone a solid and accept service so that the claim and move forward and so that the Courts aren’t bogged down with these sort of motions. All it does is add to the cost of litigation, and use up precious Court time. For once I would love to see a Judge ask the Insurer why they are not accepting service of a Claim when there aren’t any coverage issues in the case. They will likely find that there is no real reason aside from adding to the cost of litigation and in turn, using up Court time.