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What will Ontario Courts look like Post COVID for personal injury cases?

Personal Injury claimants seeking monetary compensation for their injuries and damages (think car accidents, slip and falls, dog bites, motorcycle accidents, bike accidents, long term disability cases) commence their civil claims in the Ontario Superior Court of Justice.

This is not to be confused with a Criminal proceeding or Highway Traffic Act case. Criminal Cases and Highway Traffic Act cases do NOT involve awarding the injured party monetary compensation for their damages or losses. Rather they seek to determine whether or not the accused broke the law, and if s/he did; then determining what is the appropriate punishment.

Another way of thinking about it, is that Criminal Cases and Highway Traffic Act cases are commenced and led by the State against the Accused to prove that the law was broken and to penalize the accused for their wrongdoing. It’s the public which starts and funds the case.

In contrast, civil claims are commenced by individuals or corporations using their own private funds to seek compensation for their injuries or damages. That’s not to say that a public entity cannot advance a civil claim for compensation or damages.

Civil claims are largely about money and compensation. Criminal Cases are largely about rights and protections of the person.

Most people have never set foot inside of a Courtroom, so they have no idea what Courts look like or how they work.

If people have set foot inside a Courtroom, it’s likely not have have been for a personal injury case or a case before the Ontario Superior Court of Justice.

For most people, when they go to Court, it’s on a Bi-Law matter dealing with Municipal Enforcement (like a dog bite or a property dispute with the City), a traffic offense or parking ticket (Highway Traffic Act or Municipal Bi-Law), a Criminal matter or a Family Law case. Rarely is it a personal injury case.

So what are the Courts going to look like for personal injury cases when we get through the COVID Pandemic? Notice we are optimistic about getting through COVID because you gotta stay positive in this crisis.

Let’s first visit some glaring inefficiencies for the Courts Pre-COVID.

When I was a very articling student and a young lawyer, Toronto had something known as “Call Over Court”. Picture between 75-125 of lawyers gathered in a dusty (but large) old Courtroom at 361 University Avenue. Lawyers found their number on a list of hundreds of cases, and spoke briefly to the matter as to how it was proceeding before a single Judge.

For the lawyers, it was the very definition of “hurry up and wait“. Unless your case was numbered 1-20; you were going to be waiting around the Courtroom for a very long time waiting for your number to be called by the Judge.

When your number was finally called by the Judge, you spoke for around 10 seconds and then you were dismissed. If opposing or co-counsel was there; often only one of you spoke; so you wondered why on earth you were there in the first place.

Call Over Court is gone, but we still have ancient ways of scheduling Court dates across Ontario. Each jurisdiction has its own set of rules, but for the most part, there is something known as “Trial Scheduling Court” whereby dozens of lawyers all attend the Courthouse in order to set a case down for trial. For the majority of lawyers, the amount of time waiting around for their number to be called, or the time spent commuting to/from the Courthouse, or getting their robes on far exceeded the amount of time actually doing something in Court (like litigating and advancing their clients interests).

We still see these ancient ways of scheduling in Criminal Courts with Set Date Courts or Set Date Appearances or Demands for Disclosure in Set Date Court. Essentially Criminal Lawyers travel from Courthouse to Courthouse to set dates for future appearances and demand disclosure. You will often also hear Criminal Lawyers assert their client’s 11(b) Charter Rights to a speedy trial in order to pad the record for a future 11(b) Charter Application.

Here’s how COVID can improve the Courts going forward:

Continue to have these set date and scheduling courts done by way of video or over the phone. Do away completely with the in person appearances except where absolutely required. Where would it be absolutely required you may ask? When there is a self represented party who does not have access to internet or a proper phone connection. But in 2020, if you are self represented then you had the wherewithal to either file a claim on your own, or file a Notice of Intention to Act in Person on your own. This would suggest that you could use a telephone or have access to internet to appear remotely.

The other major concern is for people who are self represented but who don’t speak English. To solve this problem, interpreters are available in person in Courts. There is no reason why interpreters can’t be available remotely.linkedin-2-300x300

In the event that a self represented litigant cannot appear remotely, then perhaps a special in person appointment can be booked.

The reality is that the majority of litigants in Superior Court, in particular for personal injury claims have their own personal injury lawyer.

Having these routine attendances appear remotely would save the parties time and money; would save the Courts time and money and would free up scarce Court resources so that they can be allocated elsewhere. It’s a win-win.

These remote hearings can go beyond set date and scheduling court appearances. It also transfers over to unopposed or consent motions before a Judge or Master. If the Judge or Master takes issue with the materials filed with the Court, their clerk can set up a call with the lawyer who brought the motion in the first place to identify their concerns and give input as to what they are seeking. This approach would also free up time, money and court resources for other more pressing matters.


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