Toronto Injury Lawyer Blog
In personal injury cases, you will hear a lot of lawyers, mediators, insurers and judges tell injured accident victims who are unfamiliar with civil litigation that the Courts are slow on account of a lack of resources. That’s very true.
But, what does having a lack of court resources look like and what does it mean?
What having a lack of resources means is that there isn’t enough money in the civil justice system to hear all of the cases which need to be heard.
This plays out with a shortage of judges, a shortage of court staff, and a lack of operating physical courtrooms themselves.
This is not because people don’t want to serve in these roles, or because we don’t want people to have their day in Court. It’s because there isn’t enough money budgeted to hire more people to handle the workload for the volumes of cases which need to be heard.
I’ve see cases which were commenced in Brampton, and then moved to Kitchener because the Brampton courthouse didn’t have the people to have the case heard. I’ve seen jurors drive to Brampton, only then to be bused to Kitchener for a jury trial because the trial could not be heard in Brampton that day.
Having practiced personal injury law for over 20 years, I’ve made note of some steps which could ease the burden on Courthouses and the civil litigation system, without burdening or making dramatic changes to civil litigation as we know it. Currently, there is a civil rules review committee which assembled and has made a number of recommendations to better stream line civil litigation cases, such as personal injury cases.
One of those major changes which has been proposed is the elimination of examinations for discovery. This is based on the naive belief that opposing parties will be completely open, honest and candid with respect to the evidence which they have in their control to produce to the other side. I can’t count the number of discoveries I’ve done, or the lawyers at my office have done, where the Defence does not produce important documents because they didn’t check, or properly check their files; or simply thought that the document was not relevant to the case at hand. The reality was that the document was quite relevant, and helped the case turn on its head) The document was likely deliberately not produced in order to reduce their client’s exposure in order to win the case.
In any event, I want to focus on some motions which can be eliminated completely in order to save the Court time and money, or done by the Registrar; who is a person who works at the Court and is not a Judge. It’s essentially a very powerful Court clerk. The more work that a Registrar does or can do; it would free up more time for Judges to do what they’ve been hired to do; and that’s to judge cases and to make decisions which ordinary people don’t have the authority to make.
- Motions to Amend Pleadings (statement of claim, statement of defence etc.). Where the motion does not involve adding a party beyond a limitation period; these motions should all be done by the Registrar. If the Plaintiff is asserting a new cause of action beyond the expiry of a limitation period, the Defendant is free to bring a motion to strike or for partial summary judgment on the new cause of action. Either way, by completely eliminating basic motions to amend pleadings before Judges or Masters, you’ve freed up a lot of time
- Motions for Substituted Service: These are some of the biggest wastes of Court resources we see, particularly in personal injury cases where we know who the insurance company is; and we also sometimes even know the lawyer(s) and law firm who will end up defending the claim. Insurers refuse to either disclose the contact information of their insured for privacy reasons. When a Plaintiff offers to set up a mutually convenient date/time for service of the Defendant insured, the insurer refuses to cooperate in setting something up. The result is that the Plaintiff has to jump through the hoops to get the Order for substituted service (often on the insurer by regular mail). All this does is add extra time and cost to the litigation; and is a serious waste of the Court’s time and resources. If an insurer does not cooperate with service, there ought to be cost consequences against that insurer. There is no valid reason I’ve heard of for an insurer not to cooperate when they know that they will be defending the claim, when Court resources are so scarce. This has always made no sense, and I’ve never seen, or heard of a Judge or Associate Judge calling out an insurer for it. I suspect that if this sort of thing happened in Federal Court in big pharma cases, that Associate Judges would call out the lawyers for creating undue delay and costs in moving cases forward like this. The biggest deterrent would be cost awards against Defendants for refusing to cooperate when it’s plain as day that they are being unreasonable. Taking no position on motions like this should not be an option to avoid cost consequences. This is where the personal injury bar should come together in order to help the Courts out. I’m not sure why this hasn’t caught on given the apparent crisis in our civil court system on account of the lack of resources
- Motions for Third Party Records (30.10 motions). Lawyers in personal injury cases need to gather records from various non parties in order to build the claim. Employment files, medical records, police records, records from various rehab clinics. Sometimes these non parties respond with the records. Other times they don’t. When these non parties are uncooperative, the lawyer will write again, and again. Still, if the non-party is uncooperative, the lawyer will have to bring a motion before the Court. These motions are often granted with little pushback from the opposing party, or from the non-party. These motions after unopposed more often than not. Can’t these motions be taken out of the hands of a Judge, or Associate Judge, and left to a Registrar to handle? If a moving party shows adequate attempts to request the records (like 2-3 letters or emails), isn’t that enough for a Registrar to grant an Order. Costs aren’t generally awarded in these motions. Judges and Associate Judges want to see a few requests, and then, generally, the Order will be granted.
- Standard Form WAGG MOTIONS for police productions, handled exclusively by the Registrar. A standard form needs to be adopted so they can be streamlined and handled by a Registrar instead of a Judge or Associate Judge. These take far too long right now; and the results, 9.999/10 are all the same. Records produced with some redactions, no costs.
