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Crisis In the Courts! How Backlogs Are Harming Personal Injury Cases

I am a subscriber to a national newspaper. We get the print edition of the newspaper to our personal injury law firm. You read that right. We still get a print edition of the newspaper in the digital age. Our subscription comes with access to the online newspaper, so that that there are paywalls behind their articles. Regardless, we still get the print copy for the office.

An insert in todays newspaper was a popular legal magazine. It’s read by many lawyers across Canada and Ontario. It’s geared to the white collar Bay Street crowd. Those who are focused on business law. It’s not really geared at Main Street lawyers, those who practice directly on behalf of everyday people, such as personal injury lawyers, criminal law lawyer, or family law lawyers.

The headline of the magazine was eye catching; just as a headline ought to be; so kudos to the editors. It was their “Litigation Special” edition of the magazine, and the headline of the publication read “Crisis in The Courts: How Backlogs are Harming the Canadian Economy“.

As a litigation lawyer, I don’t disagree with this statement. But it struck me that the victim of this statement was the Canadian Economy and not the people of Canada; like the Canadian Economy has emotional feelings or something. Now, the Canadian Economy can mean a lot of things. But, when you ask someone about the Canadian Economy, you tend to think about big ticket, macro economic items such as Banking, Interest Rates, Personal and Corporate Taxes,  Housing prices, the Stock Market, Imports and Exports, Inflation, National Debt, National Deficit, the Consumer Price Index and large government subsidies for business or infrastructure projects.

The Canadian Economy is a very broad term, but rarely does one’s mind go to the smaller line items which Canadians see everyday. But these smaller items are what we see in the Courts every day; and more frequently than those bigger ticket items.

When I was started out in law in 2003, for the first 5 years or so of my legal career I was in motions court around once a week, if not more. I appeared in Courthouses all across Ontario.

One lawyer told me that being in motions Court was like being a bank teller.  You see all sort of transactions, from simple transactions which take little time to process; to more complex ones which can take much longer and require multiple appearances.

You also get to see all sorts of different people, from different background. There are self represented litigants. Litigants who don’t speak English who require an interpreter. There are bilingual hearings. Lawyers will all sorts of different styles and approaches to get the job done.

But, there in motions Court, you are truly on the ground floor for the litigation process. You get to see all of the little steps to moving a case forward to trial, or towards completion. And I can tell you that back in 2003, it was painfully obvious to me that those motions Courts were wasting time and judicial/court resources. It’s not that the work was unnecessary. Quite the opposite. These were important procedural steps in a case.

It was just that the Courts  operated in a tremendously inefficient way. Some Courts were more organized than others. Other Courts were a complete mess! In many instances, a process could have taken 5-10 minutes, ends up taking a few hours. Consent or unopposed matters which could have been handled over the phone, in writing, or in chambers became long and drawn out shows for the sake of being a show because there was a captive audience in Court. It became law for the sake of law, instead of just getting the job done so that everyone could move on and focus on more important things. It had many young lawyers asking themselves “what are we doing here“? Why is a personal attendance necessary for this matter? It’s wasting the client’s time, and the Court’s time as well.

One of the most classic examples I can recall was “Call Over Court“. This was a relic from the past involving old civil cases in Toronto which had not been set down for trial and which were languishing for one reason or another. 50-200+ lawyers would gather in giant courtroom in downtown Toronto to explain to the Judge what was happening with their case and to set a timetable. The majority of those timetables were set on consent. Yet, a personal attendance was still required. It wasn’t enough to have the timetable filled out, or that the matter proceed by way of conference call. It needed to be done in person, and on the record. There were better and more cost effective ways of doing so,  but these were avoided because the Courts were not ready to change; or to take a practical approach to handling their affairs.P1030273-300x225

It’s important to note that rarely are cases won or lost on an unopposed or consent rudimentary procedural motion, or at Call Over Court, or at Assignment Court; particularly in a personal injury case.

To their credit, the Courts are slowly changing. These changes were brought about by the COVID Pandemic where we learned that video conferences improved efficiency and kept costs down for everyone. But, there changes aren’t happening fast enough. Instead, we still abide by the old ways which may have been great in the 1950’s when the population was low and the province had the money to put into the Court system. But Ontario has grown significantly, yet the Courts have not changed enough, or grown enough with the times. There are more cases for the Courts to handle, with less money at their disposal to deal with those cases. Making matters worse, is that civil cases, in particular, personal injury cases have become incredibly complex. This has required more court time and resources to be devoted to hearing and managing these cases because they are so complicated. Take a car accident case for instances. In nearly every car accident case there will be a Jury Selection day because insurers file Jury Notices on instinct. There will be motions regarding the number of experts, filing expert reports etc. There will be a Jury charge and an inevitable dispute about the questions to be put to the Jury. Then there will be a threshold motion at the conclusion of trial because that’s what happens in car accidents cases. The Judge will have to do a series of calculations to determine the proper amount of damages when considering the application of the deductible, along with setoffs for any accident benefits or other collateral benefits.

The same car accident case in 1950 was tried by Judge alone. It like took a half day, or perhaps it was a really long case and took 3 days! There was no issue about a threshold, deductible, or set offs as they applied to accident benefits. There was no Jury selection or Jury charge. The award was the award, and the trial was done quickly and efficiently.

Those days are long gone. The days of Court delays are here to stay so long as we remain set in our old ways and so long as our legal system; particularly the civil litigation system remains underfunded.

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