Federal government urged to take action on judicial vacancies

By Tony Poland, LegalMatters Staff • A troubling Federal Court judgment calling on the federal government to fill the large number of outstanding judicial vacancies “speaks to a justice system in crisis,” says Barrie-area litigator M. Steven Rastin.

Federal Court Justice Henry Brown made note of the high number of judicial vacancies across Canada and ordered the federal government to address the problem, but he refused to order the Trudeau government to fill the spots within a specified timeframe.

Still, he wrote the “situation as outlined by the Chief Justice of Canada and Canadian Judicial Council is clearly critical and untenable and thus most serious, and therefore in the Court’s view may not simply be ignored.”

“How long should it take to fill a sufficient number of vacancies? In the Court’s view the answer is plain and obvious: these vacancies must be materially reduced within a reasonable time to a reasonable level,” Brown states. “Very unfortunately, the court has no reason to expect the situation will change without judicial intervention.”

Rastin, senior counsel at Rastin Gluckstein, calls the judgment “unprecedented.”

‘It speaks to a justice system that is suffering’

“I have never seen a case like this before but it speaks to a justice system that is suffering due to lack of judicial resources,” he tells LegalMattersCanada.ca. “Canadians are being victimized by the unreasonable failure of the federal government to do its job and things have gotten so disconcerting that, for the first time in Canadian history, those in power are being called out by the courts and ordered to do their job.

“The court basically told the federal government to get it in gear and appoint judges,” Rastin adds. “The court is not telling them who to appoint. It is just saying they need to fill the vacancies for the good of society.”

The judgment references a May 2023 letter to Prime Minister Justin Trudeau from Richard Wagner, Chief Justice of Canada and Chairperson for the Canadian Judicial Council.

Wagner expressed his “deep concern with regard to the significant number of vacancies within Federal Judicial Affairs and the government’s inability to fill these positions in a timely manner.”

“The current situation is untenable, and I fear that this will result in a crisis for our justice system, which is already facing many challenges. Access to justice and the health of our democratic institutions are at risk,” he wrote.

However, in the intervening months “neither the Prime Minister and two successive Ministers of Justice have remedied this critical situation,” Justice Brown observed in his decision.

“With the greatest respect, the Court finds the Prime Minister and Minister of Justice are simply treading water,” he writes. “And with the greatest respect, they have also failed all those who rely on them for the timely exercise of their powers in relation to filling these vacancies. Also failed are all those who have unsuccessfully sought timely justice in the Superior Courts and Federal Courts across Canada.”

Rastin says he practises in the Central East Region and the “system was struggling before COVID hit, just like other jurisdictions across Canada.”

Pandemic shut courts overnight

“Prior to the pandemic, there was little automation in our court system,” he says. “Then COVID shut courts down overnight. No staff went into the courts for months. Pretrials were just cancelled.”

Existing cases were put on hold and new ones were added that further increased the backlog, Rastin says. As time passed some judges inevitably retired, leaving less to do more, he says.

In the past, there were two trial sittings in the Central East Region each year, one in May and the other in November, Rastin explains. There would be the pre-trial first and then counsel would select a sittings for trial, he says.

“However, that changed and the regional senior justice was concerned that too cases on the trial list when they weren’t really ready for trial,” Rastin says. “As a result, the courts moved to a system where it would no longer put a case on the trial list until there was a pre-trial and the judge was satisfied the case was ready to go.

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“I understand the reason for that but the problem is then they stopped giving us pretrial dates due to lack of judicial resources. Months went by and we had no dates. Then, when scarce dates became available everyone jumped to grab them. It was like the Hunger Games.”

He says limited slots would open up but in the time it took to reach opposing counsel to confirm their availability, the dates would be gone.

Last month, lawyers in the Central East Region were told the two civil-sitting-system worked well pre-COVID, but “because of the massive criminal backlog, the sittings have not been able to accommodate the number of civil cases that needed to be tried.”

May and November civil sittings eliminated

The May and November civil sittings were eliminated and the region will instead use a “Civil Blitz” starting in September that will run for five weeks followed by a three-week blitz in January 2025.

Six judges will be assigned to the blitz and lawyers were advised to “come prepared to start their trial” when called by the trial coordinator.

“It is an interesting concept and I hope it works,” says Rastin. “But this, to me, is the judiciary recognizing the fact that we have reached the point where we have a crisis situation in terms of the inability to deal with civil cases.”

He says criminal and family law cases take priority over civil litigation. The Supreme Court of Canada has ruled that criminal trials should finish either 18 or 30 months after a person is charged, depending on the type of trial.

Family law cases also take precedence since they involve issues such as parenting arrangements and support, Rastin says.

“COVID exposed the cracks in the justice system that were already there,” he says. “Criminal and family law cases piled up, resulting in civil trials being further delayed.”

Rastin says people with legitimate accident and long-term disability claims are waiting years to get their day in court.

Clients ‘getting increasingly frustrated’

“They can no longer work. Many cannot pay their bills and are losing their homes. It is devastating,” he says. “I can tell you that I have clients who are getting increasingly frustrated, wondering why their case is not moving forward.

“It is the civil side that is being penalized and the fault, in my respectful opinion, is a federal government that simply is not paying attention to the crisis it is creating.”

He says Canadians are pro-immigration and the new arrivals to this country “provide vitality and energy.”

“But we are not building the infrastructure necessary to support them,” Rastin says. “Not only do we need to build hospitals, schools and houses but we also need to ensure that the other aspects of our infrastructure are properly resourced, including the justice system.

“In 2022, Canada’s population grew by 1.1 million people, which puts more pressure on everything including the courts,” he adds. “We are falling behind at a time when we should be building new courthouses and appointing more judges,” he adds.