Advocacy Matters - Spring 2024

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we believe can assist in alleviating the exasperating delays in the civil justice system. 1. Increasing Resources and Judicial Appointments Our federal and provincial governments have neglected to properly fund the civil justice system for years. Healthcare, education, and other social issues get significantly more media attention, and are therefore prioritized over the civil justice system when it comes to policy and spending. This has led to many open judicial vacancies and an agonizingly slow process to fill them. In the meantime, there are not enough judges to handle the significant existing caseload and the backlog caused, in part, by COVID-19. A recent Federal Court decision from Justice Henry S. Brown decried the record number of judicial vacancies as a “crisis”. 1 As a corollary, the existing judges are overworked, under-resourced, and drained. This creates a knock-on effect where successful lawyers are not incentivized to leave private practice, and all its associated amenities, to become part of an overworked and underpaid judiciary. 2. Increase the Jurisdiction and Authority of Case Management Judges Most civil procedure rules provide a case management judge with the authority to make procedural/interlocutory orders, if it is appropriate to do so. There should be no qualifiers on a case management judge’s authority to issue procedural and interlocutory orders. Some judges have recently exhibited a willingness to make relatively substantive decisions at a case conference, which is a development that should be applauded. 2 Generally, the discovery process is often the most expensive and laborious step in the civil litigation process. Motions dealing with discovery issues are on every docket in every province, and can clog up the system. All discovery-related motions should be addressed by case conference, without the need for motion records and Now Available! Explore LEAP Marketplace Seamless integration between LEAP and its companion products gives you everything you need to run an efficient law firm. Details & Correspondence Calendar & Tasks Financial Summary Time & Fees General Account Trust Funds Safe Custody Save & Close DETAILS 180025 New Document New Email Forms & Templates Matter New Correspondence LawConnect Mobile Microsoft Teams IN PROGRESS New Comment Import Share Document eSignature Message CORRESPONDENCE Send Document Search correspondence Timesheet Time & Fees Legal Accounting & Billing Microsoft 365 Integration Support & Training Secure Document Management Cloud Solution & Mobility Automated Court Forms & Precedents James Stevenson TYPE ITEM STAFF MODIFIED Applicant Ms Sally Penfold Correspondence James Stevenson JS 9:36 AM Matter type Property Division Respondent Mr Paul Penfold Respondent's lawyer Harris & Jacobs Solicitors Mr Joshua Harris Client correspondence 181 University Ave, Toronto, ON M5H 3M7 Critical fam law details Sally Penfold and Paul Penfold Property.. jharris@email.com Financial Statement James Stevenson Your Settlement/Property Affairs jharris@email.com Trust Statement Costs agreement - Property Settlement James Stevenson Letter to Mr Penfold James Stevenson JS JS JS JS JS JS 9:32 AM Apr 2, 2020 Mar 29, 2021 Mar 29, 2021 Mar 28, 2021 Mar 27, 2021 BOOK A DEMO leaplegalsoftware.ca sales@leaplegalsoftware.ca | 1-437-900-2140 88 Queens Quay West, 25 th Floor, Toronto ON, M5J 0B6 16
factums. In the event the case management judge believes the motion is too complicated to be dealt with by way of case conference, it can be rescheduled to be heard on the regular motions list - but only after the case management judge has performed a gate-keeper function. 3. Increasing Flexibility of Movement Across Judicial Centres One of the authors of this article recently argued a motion in London, Ontario. Oral argument was not completed within the allocated time, and another half day was needed. The presiding judge sits in both Windsor and London, which meant when selecting dates for the balance of the motion, the parties could only pick dates where the presiding judge was scheduled to be sitting in London, which was months away. This restriction existed even though the motion was being heard virtually. The clients were confounded as to why the judge could not hear the balance of the motion until the judge was scheduled to be “sitting” in London, when the reality was that that judge was going to be “sitting” in front of their computer. Delays could be reduced if the courthouses worked more collaboratively and allowed judges increased flexibility to hear cases across different courthouses when judges are assigned to more than one courthouse. 4. Reducing Time for Oral Argument Everyone is entitled to their day in court. But not everyone should be entitled to a full day in court. Long motions should be the exception to the rule and granted only with leave and in rare circumstances. Counsel are required to prepare detailed facta and written material prior to any significant contested motion. However, at the oral hearing, counsel habitually reiterate and repeat what’s in their written material. The oral hearing should be dedicated to responding to the opposing party’s factum, fielding questions raised by the presiding judge, and grappling with unresolved issues. This approach could greatly increase efficiencies, reduce court delays, and provide the presiding judge with more time to review the written materials that were filed. None of these proposals, in and of themselves, will resolve the endemic court delays that the public, clients, and lawyers are suffering through. Systematic and fundamental changes are necessary - we reiterate The Advocates’ Society “Call to Action” However, every potential solution should be explored. The recommendations in this article can assist in alleviating some of the issues. Without a concerted effort by all stakeholders to address these issues, the public will continue to have their rights trammelled due to the negative impacts from the unacceptable delays in the civil justice system. We must all continue to strive for a better, fairer, and more efficient justice system. Notes 1. Hameed v. Prime Minister and Minister of Justice, <strong>2024</strong> FC 242 2. See Miller v. Ledra, 2023 ONSC 4656 at paras. 31-37. 17
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