Feds can solve civil trial delays with the right action

The delay in scheduling long trials is a significant problem affecting access to justice for seriously injured accident victims — but there are several solutions the government can implement in order to ensure that the civil justice system runs more smoothly, Toronto critical injury lawyers John McLeish and Stefanie Chimienti write in The Lawyer’s Daily.

As McLeish, partner with McLeish Orlando LLP, and Chimienti, a lawyer with the firm, explain, long trials are now being scheduled into 2019, a delay which has been caused by two main factors: judicial vacancies — including 20 across Ontario — and the repercussions of the recent Supreme Court of Canada decision of R. v. Jordan 2016 SCC 27. Jordan requires a trial of an accused in Superior Court to be reached within 30 months, failing which, the charge will be stayed for unreasonable delay. The decision has also caused judicial resources to be diverted from civil cases to criminal cases.

As a result, they write, “Accident victims are now competing for the same scarce court resources, as those accused of a crime. But the message is clear — an injured individual having her day in court is not a priority. An injured individual, who cannot go back to work, who requires assistance at home, and who cannot pay her bills, has to wait longer and longer while criminals get the benefit of scarce judicial resources.”

Fixed trial date

McLeish and Chimienti say that these delays are also not lost on insurance companies as, without a fixed trial date on the horizon, they feel no pressure to make a realistic settlement offer.

“Accident victims, faced with difficult financial circumstances because of an injury, will often opt for an unfairly low settlement, rather than face the long delay in obtaining a trial date,” they write.

In terms of solutions to the problem facing injured individuals, McLeish and Chimienti say Ontario judges involved in personal injury cases are working creatively in trying to make an under-resourced system work and are engaging with the bar to try to find solutions to the problem.

However, they write, there is only so much the judiciary can do — instead, the final solution rests with the government.

“There are several things the government can do. The most obvious one is for the federal Minister of Justice, Jody Wilson-Raybould, to fill the judicial vacancies and for the provincial government to provide the resources necessary for the civil justice system to function efficiently.”

Another solution, they say, would be to increase the monetary amount for cases in small claims court from $25,000 to $50,000 and under the Simplified Rules from $100,000 to $200,000.

Increasing monetary jurisdiction

“The majority of personal injury cases that are dealt with in the superior court have a monetary value of less than $200,000. By increasing the monetary jurisdiction in small claims court and under the Simplified Rules, most personal injury cases could move through the system with significantly reduced expense and much greater speed. This would free up judicial resources for the more serious cases that do not fall within the small claims court or Simplified Rules monetary jurisdiction,” write McLeish and Chimienti.

Eliminating juries for all civil trials would be another option, they suggest.

“Ontario is the only jurisdiction that has this archaic and outdated system for the trial of civil actions. Civil jury trials are more time-consuming, expensive and unpredictable when compared to non-jury trials. Unpredictability, as we have seen from Donald Trump-style politics, leads to inefficiency and little or nothing getting accomplished.”

This solution, explain McLeish and Chimienti, would result in more personal injury cases settling before trial and would cause many trials that do start, to settle before a final verdict.