Advocates’ group cites coming crisis in civil and family court delays, makes plea for more resources

“Much of that was happening before COVID-19, but the situation was absolutely exacerbated during the pandemic.”

Hussey, a partner at Bennett Jones LLP, says the most severe stories concern delays in the family courts, adding that this is troubling, given the emotional nature of domestic disputes and the issues around family violence. However, civil and commercial cases also face delays in the court system, “so we’re finding that it is taking a very long time for these clients to get justice.”

These delays are leading people to make tough decisions, she says, and are emotionally and financially “taking away from their real life and real business.” They must settle for less than what they are entitled to or pay more than they need to get on with their lives.

In family cases, it may mean one parent not being able to “take that great job” because they can’t get court permission to relocate with their children or not get the custody and financial support they are entitled to. “And obviously, there are situations in which people are living with abuse.”

Hussey says that nearly every Canadian will experience at least one civil or family justice issue in their lifetime. “The civil justice system is critical to every person, family, organization and business in Canada and to the peaceful and democratic society in which we live,” she says.

The report, called Delay No Longer. The Time to Act Is Now includes some of the day-to-day experiences of society members and their clients.

• In Quebec, it was estimated that in 2021-2022, litigants would wait an average of 593 days between filing their claim in the Small Claims Division (for claims of less than $15,000) and the trial.
   
• In British Columbia in 2022, the Supreme Court “bumped” hearings because of the lack of judicial resources 10.9 percent of all long chambers applications, 24.6 percent of civil trials (102 bumped compared to 312 heard) and 14.4 percent of family trials (26 bumped compared to 154 heard).
   
• In Alberta, it routinely takes more than nine months for an application longer than 20 minutes to be heard by a judge in Edmonton or Calgary; and 2 to 3 years for a trial longer than five days to be scheduled from the date the parties certify readiness.
   
• In Ontario, it currently takes almost 1.5 years for a motion longer than 2 hours to be heard by a judge in Toronto, and more than 1.5 years after the trial management conference (or more than four to five years from the issuance of the original application) for a three-week family law trial to be heard by a judge in Brampton; and more than four to five years for a civil action to proceed from commencement to trial.

The report is a “call to action,” Hussey says, a plea for governments, courts, lawyers, and the public to take urgent steps to address the lengthy delays faced by litigants with civil and family disputes in the court system.

She points to some examples society members gave in the report that shows how delays can lead to a lack of confidence in the justice system.

• “I was interviewed by a potential client, a major international corporation, for an arbitration retainer. They told me they wanted to go to arbitration because the delay they encountered in litigation in Ontario was the worst they had ever encountered in their worldwide operations.”
   
• “A colleague of mine had fully prepared for a weeklong trial, and clients and witnesses had already flown in for the trial. The first day of the trial was cancelled because no judge was available, but the court told the parties to stay in town and wait to see if one could be found. The next day, the rest of the trial was cancelled for lack of a judge. The costs of counsel’s preparation for the trial and for participants’ travel were completely wasted.”
   
• “As a family lawyer, I have to tell my newly separated clients that I cannot get court orders that will help them leave intolerable (and, in some cases, abusive) home situations for many months or more than a year, such as orders for temporary parenting or support. If they need the court’s help on multiple issues to move out, it is considered a ’long motion’, which is booking well over a year away — and this is for temporary relief, never mind a trial. Clients often start court applications earlier than they would otherwise, just to start the clock rolling. The financial and personal costs are unbearable for most family litigants.”

Hussey says the report also makes suggestions on how to address the issue of delays, though she acknowledges more than one idea will be needed to solve the problem. For starters, collecting data can locate “pain points” in the system.

There is also a need for increased resources – judges and staff – and deploying those resources flexibly. In particular, the report notes that the recent implementation of technology and virtual proceedings “presents an unprecedented opportunity to mobilize the courts’ judicial and other human resources across a given jurisdiction to support busier or more backlogged regions.

“Technology can be used to redeploy judicial resources to areas within a province or territory where they are most needed, without having to incur the significant cost and disruption of travel or permanent relocation.”

However, the use of technology is only as good as the technology itself. The society’s report says the courts must continue to “commit the necessary resources, monetary and otherwise, for the thoughtful integration of technology into the administration of justice.”

In particular, the report recommends implementing technology to improve court filing and scheduling systems across the country as an essential step towards curing the crisis of delays.

“While some Canadian courts developed electronic filing systems before or during the COVID-19 pandemic, others still require litigants to file paper materials, either in person or by fax.”

Another area where the use of technology can diminish delay is in the scheduling of court dates. There are software solutions, the report says, that would permit court users to schedule their dates, automatically send reminders and automatically strike matters from the list if deadlines are not met.

More sophisticated software can even predict the likelihood of certain cases resolving or proceeding and use that information to maximize the effective use of court time.

According to the report, “To our knowledge, apart from some small pilot projects, this software is not being used by Canadian courts, and scheduling is still done manually via email, fax or telephone. Implementing online scheduling applications that centralize and automate the scheduling of appearances before the court could greatly reduce inefficiencies and errors and save money by freeing up court staff to focus on other important tasks.”

Given the situation, Hussey says, “By the time people get to the court system, they do not believe that they can resolve the dispute on their own, and they are looking to our system to deliver justice.

“If we can’t deliver justice in a timely way, we will be depriving people of justice altogether, which means that people will start to lose faith in the system, and the system is in place to help people resolve disputes. It is what allows us to have an orderly society.”