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Brian Goldfinger on Civil Justice Reform

Earlier this week Chief Justice Morawetz gave his address at the traditional “Opening of the Courts” for Ontario.  Calling it the “Opening of the Courts” is likely very confusing for the general public.

To be clear, the Courts were not “closed” before that time. But every year around this time we have a ceremony to “open” them in pomp and circumstance. If you like legal tradition, then this is the place to be! If you weren’t there live (which you likely were not), you can catch the ceremony here as it was publicly posted on YouTube.

The Opening of the Courts presents an opportunity for the Chief Justice to make a state of the union type of address acknowledging how the Courts and the Administration of Justice is performing from an insider’s perspective. It presents the Chief Justice with an opportunity to announce plans or changes moving forward. When the Chief Justice speak, lawyer across Ontario listen very attentively. Here are a few interesting comments from the Chief Justice himself from the Opening of the Courts which caught my attention:

References to the Queen have now transitioned to the King. Our Registrars now refer to the King when opening and closing court.”

The current situation (in Ontario Civil Courts) cannot continue. If the timeline between the commencement of a civil matter and the trial is 4 to 5 years, the civil justice system is simply not responding to the litigants.

return to in-person hearings, especially for substantive and complex matters, is an integral part of the judicial system and essential to the administration of justice.”

Meaningful access to justice requires in-person hearings for many self-represented litigants. It is also essential to building the core ingredients of a strong and healthy bar — mentorship and collegiality

There is no going back: virtual hearings have become a permanent fixture for court proceedings

civil proceedings are an area that is ripe for major change…..(The Court) runs the risk of becoming irrelevant in civil proceedings if action is not taken.”

The Rules of Civil Procedure were meant to provide us with a roadmap to resolution; but instead, civil proceedings have become bogged down by process. They have become a maze that is difficult for many to navigate. They have become out of step with the purpose they were meant to serve

In commenting on this, the Chief Justice commented that there out to be a new and more simple path forward. There looks to be a complete re-writing of the Rules of Civil Procedure within 3 years.

This is great news. How we litigate civil matters, in particular personal injury matters needs to be revisited to increase access to justice, and to bring matters towards resolution in a faster, more cost effective and more direct way.

For starters, I would do away with Civil Jury trials altogether. Nowhere is it written that a party to a car accident has a G-d given right to have his/her case decided by a Jury.

A civil car accident case involves compensation. That’s it. Nobody’s life, liberty or freedom is on the table. The only thing which is at stake in a car accident case is money. The “loser” of a car accident case is NOT going to jail for losing his/her case. Their name is not going on some registered offender’s list, nor is their name going into some database of previous criminal offenders. For 99% of cases, the insurance company pays the legal fees for defending the claim; pays all of the disbursements; and pays out on any award, judgment or settlement. The individual Defendant does NOT pay any of these things.linkedin-2-300x300

The benefit to a Defendant of a Jury trial is that Jurors don’t know any of this. The name of the insurance company defending the claim is NOT published or mentioned at trial. Only the name of the individual Defendant is published. So, the Jury doesn’t know that there’s a large, deep pocketed and sophisticated insurer behind the defence of the claim. In awarding a judgment, the jurors suspect that the award is coming out of the pocket of the individual Defendant and not a large, sophisticated insurer.

Insurers don’t get the benefit of hiding their identity behind that of an individual in long term disability cases. This can explain why we see more large punitive and aggravated damages awards against Defendants in long term disability cases as oppose to car accident cases. The identity of the insurer is important and not disclosed in car accident cases; as oppose to long term disability cases.

As a young lawyer who was in many different Courts at the very least once per week, if not more, the problems which Chief Justice Morawetz highlighted in his address were running rampant. Courts were slow, non-responsive, ridden with delays and frankly, not helpful in serving the public in the administration of justice. It was as if each Court house had a handful of disgruntled employees who appeared to be overworked and underpaid. The Courts across Ontario never appeared to have enough Judges, Court Staff, or physical space (Court Rooms) to hear the amount of cases which were coming in. The moment a Plaintiff filed his/her claim, it was as if it sparked a feeling of negativity or anger from the Courts. As if to say “How dare you file a claim in this Courthouse!” or “We don’t want your case, go file your case somewhere else“. This was a top down sentiment which trickled at the top from Judges, all the way down to Court staff. The civl Courts did not want to handle more cases; nor did they want to assist the public in getting the cases moving through the civil justice system. Parties were, and continue to battle against each other; and against the Courts in getting matters heard and moving quickly through the system. When you can’t get an undertakings/refusals motion heard in Toronto within 6+ months, you know you have a problem with respect to the civil administration of justice. Or, perhaps you just don’t issue the claim in Toronto and issue the claim in another jurisdiction where you can get a Court date much faster. Is this what we want to encourage?

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