Civil courts plagued with growing backlogs, shortage of resources

By Tony Poland, LegalMatters Staff • A shortage of resources and a growing court backlog have pushed Ontario’s civil justice system into an untenable situation, says Ontario mediator and litigator Avril Hasselfield.

Hasselfield, a partner with Results Mediators, says the shortcomings are making it increasingly difficult for the average person to find timely justice in the legal system.

“The system is not working well,” she tells LegalMattersCanada.ca. “Canada prides itself on being a fair and democratic society. However, not having an efficiently functioning civil court system raises the question of whether people truly have access to justice.”

Court backlogs are nothing new, whether in the civil or criminal justice system, Hasselfield notes.

“This has been a problem since I started practising law over 20 years ago and it has only continued to deteriorate,” she says. “I have not  witnessed any significant steps to fix the problem and it is just taking longer and longer to set court dates for motions and trials, with both taking years before anyone can get a court date.”

Government announces criminal court funding

The Ontario government recently announced it will spend more than $29 million to appoint at least 25 new judges to the Ontario Court of Justice and hire 190 additional Crown prosecutors, victim support and court staff.

The government stated the funding “will help the court to keep pace with a growing number of complex cases and address the existing backlog of criminal cases. It will also improve access to justice for those involved in the criminal justice system, including victims and their families.”

“Through this investment, we are taking action to ensure the court has the capacity to hear cases in a timely manner,” said Attorney General Doug Downey. “Keeping families and communities safe is a top priority for our government and this investment builds on the progress being made in reducing and resolving cases before the courts.”

Ontario Chief Justice Sharon Nicklas applauded the move.

“This infusion will be critical in helping the court achieve its vision for a fair, accessible and innovative system that delivers impartial and timely justice, ensuring that all participants are treated with dignity and can take part meaningfully,” Nicklas said.

Hasselfield says the plan to add more judges and staff to the criminal justice system is understandable.

In the landmark case R. v. Jordan, the Supreme Court of Canada ruled in July 2016 that most criminal trials should finish either 18 or 30 months after a person is charged, depending on the type of trial.

‘It is the same government running them’

“I understand that the government is bolstering resources in the criminal justice system,” she says. “It makes headlines when someone who has been accused of a serious crime is released because of an unreasonable delay and no one wants that to happen. I agree that criminal courts deserve funding,” Hasselfield adds. “But why can’t the government fix the civil side at the same time? Regardless of whether criminal and civil are two separate streams, it is the same government running them.”

She points to a report last year by the Advocates’ Society that called on all justice system stakeholders “to take immediate and concerted action to solve the endemic delays plaguing the delivery of civil and family justice across Canada.”

“Canada’s civil and family justice system is in crisis,” the report states. “Many Canadians … wait months or years to have basic disputes scheduled and heard by the courts. This crisis pre-dates the COVID-19 pandemic but was also exacerbated by it.

“Delays increase costs, deny timely relief, create opportunities for injustice, squeeze people out of the system, or discourage them from assessing it in the first place. Justice delayed is justice denied, and for many, the consequences of justice being delayed are life-altering.”

Delays have unintended consequences

Delays have the unintended potential of tipping the scales of justice in favour of deep-pocketed parties who can wait out the process, Hasselfield says. For example, someone who files a disability claim may be out of work and have no money coming in while waiting for their case to be heard in court, she says.

“That can work in the other party’s favour,” Hasselfield says. “There can be pressure to settle because it takes years before they get their day in court.

She says the majority of cases settle before going to trial, and with good reason.

“The cost of going to trial is astronomical. There is also the time and stress that goes with it,” Hasselfield explains. “Realistically, the only time a trial is worth it is if you are talking about million-dollar lawsuits.

“For most cases, no matter if it is insurance, employment or securities, mediation makes perfect sense,” she adds. “The parties decide the outcome and the timing and you do not leave the decision in the hands of a judge who is only able to consider the evidence presented to them. It also saves time and money.”

Impact of delays is ‘severe and far-reaching’

According to the Advocates’ Society, “Nearly all Canadians will experience at least one civil or family justice issue in their lifetime.” The organization states the impact of delays in civil and family justice is “severe and far-reaching.”

“That is why we need to fix the civil judicial system,” says Hasselfield. “If you go into a courthouse in the afternoon of any day there are often empty rooms. The people who want to get in front of judges can’t. There is a shortage of resources. The simple answer may be to add more judges. But appointing more judges and training them takes time.

“Meanwhile, we have empty courtrooms not being used to our maximum benefit. It just speaks to a system that is broken,” she adds. Most people who have gone through the court system are shocked, disappointed, exhausted and left with significant costs. It is not what they are expecting from Canada and Ontario. Everyone knows it should be better, but nothing is happening. I am pleased to see the financial announcement for the criminal courts. Hopefully, it will trickle over to the civil side too.”

In Part Two of this two-part series, Ontario mediator and litigator Avril Hasselfield discusses the need to expand mandatory mediation.