Across the country courtrooms are facing significant delays and backlogs, which is beginning to have severe impacts on Canadian business relying on the court system for dispute resolution. In an interview with Lexpert, litigation partner and co-head of Torys' securities defence practice Gillian Dingle weighed in on the issue, reflecting on some of the underlying causes of the delays.
"At the macro level, delays in the civil litigation space are problematic for everyone—for litigants, for counsel, and the court system in general," Gillian said.
"Memories fade over time, so the further away you get from an incident, the more difficult it is for people to remember what happened, and the costs of litigation increase as it gets pushed further into the future."
Even in Toronto, which benefits from having a Commercial List of judges and support staff who have the experience to manage complex commercial litigation cases, businesses may still wait months or years to schedule a trial, Gillian said.
"When thinking about bringing on a motion, I'm anticipating it is going to be at least six months before it can be heard," she said.
What complicates the situation ever more and exacerbates the delays is that civil cases are often pushed off to allow for criminal cases to be prioritized.
"We understand at a big picture level that civil cases don't deal with the loss of someone's liberty, that the system prioritizes criminal cases, which is the right move, but it does have consequences for the civil system," Gillian said.
Vacancies and "chronic understaffing" of judges is another serious cause of delays, which have caused some cases to get adjourned.
"To have a case admittedly heard and told there is no judge is very difficult and costly," Gillian said. "Judges are being asked to do a huge amount of work with few resources."
Procedural standards are also contributing to delays, Gillian points out. "Litigators have become comfortable with a certain level of procedural protection for our clients—the ability to bring a motion on issue X, Y, or Z— but that means the trial date may be delayed to accommodate whatever procedural argument you're fighting about."
"Lawyers are naturally resistant to give up something they think might be useful to their client."
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