It’s safe to say that civil litigators (and subsequently their clients) are all having issues involving court delays, wait times and backlog.
It’s safe to say that civil litigators (and subsequently their clients) are all having issues involving court delays, wait times and backlog. Many reforms have been put into place to improve this backlog including: the movement towards alternative dispute resolution; removing matters for court delay and the movement of matters to be heard in writing.
Motions have unfortunately become an integral part of our civil litigation process. While they were originally intended to serve a fair trial, they have become ripe for abuse creating the opposite result. The constant barrage of motions has led to the congested docket, in a large part causing delays that undermine the very fairness the legal system is meant to uphold. I first noticed this earlier on in my career, and I’m sure my colleagues would agree. I represented a client who paid a refundable deposit to acquire a commercial building but was not satisfied with diligence and requested their deposit back — the seller refused. A simple lawsuit to return refundable deposit money evolved into a motion to transfer the case to a different court and another motion to adjourn a third motion and a discussion of case law to discuss the philosophies of whether orders should be granted in each of these motions. As the costs and court delays continued to mount, my incredulous client accepted 50 per cent of the deposit back as a settlement to move on, creating another individual who has lost faith in our justice system.
Many of the motions that are argued in courts today are junk that create delay and backlog. Of course, it could be argued that many of these motions are vital to a case — a motion to set aside default judgment because a party was not properly served does not create an unnecessary court delay — and the court delays are justified. This might be true, but many motions including this example do not need to be handled by a set hearing date by the few judges we have on the bench, but can be triaged by the very clerks who noted the party in default in the first place.
The cost and court delay leads to a general unfairness that negatively impacts public opinion of the justice system. Defending parties simply ignore deadlines, orders and rules which force parties to spend money to bring motions, so the plaintiff abandons their case. In addition, public perception is further harmed with the creation of a parallel universe where parties are arguing about one thing (a refundable deposit) while paying lawyers and the court to argue something else no one is concerned with (should this be heard in Toronto or Ottawa).
We lawyers need to get real about improving court delays in our legal system and the small changes here and there have not been making enough of a difference. It’s time for larger reform and that starts with the removal of motions in our court system.