How to Stop Our Civil Courts from Atrophying

“To stand by as civil courts continue to atrophy risks jeopardizing the health of our democracy, our economy, and our private law… [W]e must change our ways and work to re-invigorate our public civil courts.” Justice David M. Brown of the Ontario Court of Appeal in “Commercial Litigation in the Next 10 Years: A Call for Reform”

Currently, our courts are hemorrhaging civil cases. Instead of disputes being heard by judges, they are being heard by private arbitrators or tribunals. Oftentimes the reason for this diversion is cost. People proclaim that it is simply too slow and too costly to use our judicial system.

The atrophying of our civil courts means that our democracy pays the price. Democracy only thrives when everyone, including small businesses and individuals, have meaningful access to an independent court. This is because public dispute resolution maintains order in our society and ensures that our laws keep pace with the times. By doing so, it supports the public’s faith our governmental structure.

Tribunals are not a good enough substitute to our courts. Partly because tribunals, as creatures of statute, can be abolished at any time, including at a political whim.

In “A Call for Reform”, Justice Brown offers several strategies for stopping the reduction of our civil courts. In particular, he cites adopting a “Front-End-Assignment-of-Trial Dates” System. Trial dates would be assigned upon the close or deemed close of pleadings. And once assigned, these dates would be carved in stone. I would go one step one further. I would say these trial dates should be assigned upon the issuance of the Statement of Claim and then set in stone.

Forcing people to adhere to a strict timeline incentivizes lawyers to work quickly and not let their cases languish. To incentivize lawyers, Justice Brown recommends that parties be mandated to disclose the documents that they intend to rely upon at trial when they file their claim or defence. By forcing lawyers to think about the trial, we can begin to chip away at the culture that sees the skilled civil barrister as the “motions specialist, [rather than] the final hearing expert”.

To change the order of production and to assign court dates at the beginning of a lawsuit, we need to adopt technology in our courtrooms. “[L]et the light shine in, dispel the ghosts of the past, and have the Bench, Bar and provincial government move ahead to modernise our court technology systems.” Hopefully in doing so, we will move our culture from one that praises the motion specialist over the civil trial lawyer.

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