For several years, personal injury lawyers representing plaintiffs have told us many reasons that cases take too long. Litigious insurance companies, requests for overly detailed medical reports, centralization of adjusters, armies of experts, and defence counsel delaying tactics have all been mentioned.
In addition, the court systems in many provinces have suffered systemic problems for years.
In British Columbia, a record of 140 provincial Supreme Court trials, were postponed in 2019, compared to only 33 the year before. The majority of these were Insurance Commission of B.C. (ICBC) auto insurance cases. The Trial Lawyers Association of B.C. says the combination of “unreasonable ICBC settlement offers” and too few judges to hear cases hampers due process. Association president John Rice maintains that the ICBC has implemented a strategy to make low offers.
In Alberta, “The justice system has not been adequately funded in this province for a long time and it has caught up to us,” according to Frank Friesacher, past president of the Canadian Bar Association’s Alberta branch. Less than one per cent of the 2018 provincial budget went to the justice system, and funding increases have not kept pace with population growth, stagnating in recent years. Edmonton lawyer Avnish Nanda has suggested that the province hire more masters in chambers. Masters cannot decide on the same range of issues that a judge can, but they can resolve many procedural issues, which could help make the Alberta court system more efficient.
In Ontario, courtrooms across the province are in operation on average for less than three hours a day, the Auditor General found, well below the ministry’s optimal average of 4.5 hours. The 55 courthouses across the province that reported above-average delays in resolving cases all operated less than 4.5 hours a day. In addition, the system remains heavily paper-based, with paper making up more than 96% of all documents filed in Ontario’s courts in 2018-19. Attorney General Doug Downey has asked the Ministry to explore options to implement technology initiatives already used in other jurisdictions. The province just cancelled construction of a new courthouse in Oakville, with part of this budget going toward IT development.
Across Canada, the federal government has been slow to appoint judges. As of January 7, 2020, there were 68 vacancies in federal superior courts across Canada. Most of the vacancies, including provincial courts of appeal, are in Ontario (19), Quebec (12), British Columbia (8), and Alberta (8). In addition, the number of applicants has dropped in recent years, while over half are rejected. There were 997 applications for the federal benches in 2016-17, but only 252 in 2017-18 and 320 in 2018-2019. Fifty-six per cent of applications assessed over those years were screened out as “unable to recommend” by the judicial advisory committees.
Technology could make the legal system less place- and paper-based, but it will still be human-intensive. Travel and paperwork might be reduced, but the human resources required won’t change. As such, can the system ever be faster?