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Michael White, president of the Toronto Lawyers’ Association

Backlogs at court, A2J for jury trials at risk as pandemic persists

Tuesday, August 17, 2021 @ 9:43 AM | By Amanda Jerome

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Despite the justice system’s massive pivot to adopt technology and remote hearings at the start of the COVID-19 pandemic, legal organizations and lawyers have noted that a backlog persists creating an access to justice issue in areas of practice that require jury trials.  

Kris Bonn, president of the Ontario Trial Lawyers Association (OTLA), said the organization is concerned about the backlog of civil jury trials and the impact this will have on access to justice. He noted that since the pandemic hit the province in March 2020 “there’s only been one civil jury trial.”

 Kris Bonn, president of the Ontario Trial Lawyers Association

Kris Bonn, president of the Ontario Trial Lawyers Association

“There was a small window in the fall of 2020 where one medical malpractice civil jury trial went forward in October. ... That’s the only one and we’re coming up on 18 months since the pandemic started,” he said, stressing that “hundreds of civil jury trials across Ontario have been adjourned” and the OTLA is concerned the delay will continue.

Bonn noted that on Aug. 10, the Superior Court of Justice in London, Ont., released an announcement that civil jury trials would be adjourned due to the “significant backlog of criminal and family cases … .”

“Unfortunately, civil juries are third in line for court resources and we’re very concerned that this backlog, as it continues, is going to further cause delays in our clients having a chance to get to court to have their cases heard,” he explained.

Bonn said OTLA members are doing what they can to move cases along despite the backlog.

“We know our members are bringing motions to the court to have jury notices struck because, while civil jury trials have not been able to proceed, there have been a number of virtual trials before a judge alone and that seems to have worked fairly well,” he said, noting the Court of Appeal has addressed this issue in decisions such as Louis v. Poitras, 2021 ONCA 49.

Bonn told The Lawyer’s Daily that the OTLA has reached out to the Ministry of the Attorney General and is trying to “urge the government to put in place the reforms that the Attorney General, Doug Downey, proposed last year regarding eliminating civil juries for most civil matters.”

He noted there are some “important carve-outs” where civil juries should remain. He used medical malpractice as an example of such a carve-out as it “engages community values” and has a “public interest” factor.

“For most civil cases we’re urging the attorney general to put in place reforms to limit the use of civil juries, particularly in motor vehicle crash cases,” he said, adding that these cases make up the majority of civil jury trials, which are now being held up due to the pandemic.  

“If we can get those reforms done, hopefully we can proceed with those cases through a judge alone [trial]; even in a pandemic we can do it virtually,” he explained.

Bonn is a personal injury lawyer with Bonn Law and has experienced the delays in the system with one of his civil jury trials being adjourned back in January. He has some other cases scheduled for 2022, but he doesn’t know yet whether they will proceed or not.

He noted that in civil and personal injury areas of practice, the backlogs are a “very large access to justice issue.” He said clients can wait for years to have their cases decided but aren’t able to proceed right now “as long as there’s a jury notice in place.”

Bonn stressed that the OTLA wants “to see justice served” and the “best way to do that is to limit the use of civil juries.”

“There’s no evidence, as the Court of Appeal said most recently this past year, to suggest that a judge alone trial offers anything different or a less robust decision on the merits of a case. So in order to ensure there’s access to the courts in a timely basis, the Ontario Trial Lawyers’ Association urges Doug Downey and the current government to put in place the reforms to streamline the process and to eliminate the civil jury. Again, just to make sure that our cases are going to be able to get heard in a timely and cost-effective manner. There’s no question that jury trials take longer, and they’re more expensive, and that causes delays in the system,” he added.

Daniel Brown, vice-president of the Criminal Lawyers’ Association (CLA), said the association is concerned that “cases are taking longer to complete,” but acknowledged the great work the courts have done to try and keep the legal system on track during the pandemic.

“There’s good reason to have speedy justice; it’s good for an accused person who is facing allegations that can be stigmatizing. It’s important for victims of crime to have their matters resolved quickly; it’s important for really all the justice participants that cases are dealt with expeditiously, but at the same time we recognize that this is really a humungous obstacle in the way. The COVID-19 pandemic was not something that was ever foreseen, [and it’s] something that we simply have to overcome,” he said noting that all justice participants are “working together to find ways to get the justice system back on track.”

This includes, he added, “accommodating more remote hearings as a way of ensuring more hearings can proceed outside the traditional physical court system.”

“And also, I think the Crown attorneys are really looking for ways to divert cases from the justice system that don’t need to be there, so there’s certainly more scrutiny spent on the front end of cases reconsidering whether or not a prosecution is in the public interest,” he explained.

Like Bonn, Brown noted that the “cases that have been most significantly delayed are jury trials.”

“It’s only been this past month that some jury trials have started up again in the province of Ontario and so, what that means is that cases that should have been heard in early 2020 are still before the courts and that is causing a backlog of other cases,” he said, stressing that there’s “only a finite number of courts that can accommodate jury trials and only a finite number of judges that can preside over jury trials, so that’s where we see the biggest challenge right now.”

Brown explained that another challenge is “simply finding enough jurors to participate in those jury trials.”

“Many jurors aren’t appearing for jury notices because they’re worried about coming to court and exposing themselves to COVID. I think jurors are relatively reluctant just to give up their summers, especially after such a long lockdown period, to then spend weeks or months presiding over a jury trial,” he said, adding he and his colleagues have “noticed that the number of jurors that are coming to court are significantly low, about 25 per cent or less in some cases, of expected number of jurors.”

However, the upside to this, he said, is that “the jurors who do come to court are almost always suitable to be selected. So, it isn’t hindering the ability to select a jury thus far, but it may in the future.”

Brown highlighted the effort the courts and the legal profession have put into “adapting and looking for efficiencies in the justice system.”

“It’s not just the ability to provide court appearances remotely, to provide disclosure and the evidence in a case by getting that to counsel remotely, there’s a whole host of technological advances that have made the practice of law more efficient. We expect that those technological advances will remain long after COVID is gone and that these advances will make the justice system run more efficiently in the future, so that cases are able to be brought to trial with fewer resources and more quickly,” he explained.

He said the “hidden blessing” from the pandemic is that “the justice system is going to be more efficient and will run better in the future because of the advances we’ve made during COVID.”

“We also have to remember that even though there’s a constitutional right to a trial in a reasonable amount of time, the courts would discount an unforeseen circumstance like the COVID-19 pandemic, from that analysis. So, we don’t need to worry about cases being thrown out due to COVID related delays alone. It’s only if there [are] other foreseeable delays that haven’t been addressed by the courts, or the Crown attorneys, or the police, that could lead to these cases being thrown out in the future,” he stressed.

Brown also noted that “one of the benefits of having a constitutional right to a trial in a reasonable amount of time is that the criminal justice system has been able to get trials back up and running more quickly than some of the other areas of practice.”

“For example, the civil courts have really suffered because these types of cases are being pushed back in favour of having criminal cases proceed,” he said, adding the criminal bar hasn’t seen the kind of delays that the civil or family bar has at this time.

 Michael White, president of the Toronto Lawyers’ Association

Michael White, president of the Toronto Lawyers’ Association

Michael White, president of the Toronto Lawyers’ Association (TLA), said although the pandemic has been challenging overall for lawyers and the courts, the delays are “very practice specific.”

White told The Lawyer’s Daily that the TLA has received feedback from members across many areas of practice about a backlog in the courts.

On a positive note, he said that criminal lawyers have been appearing virtually for issues, such as bail hearings.

“This has actually worked better in many cases than prior to COVID. Those attendances are more administrative in nature and one lawyer can attend in different courthouses without having to take the time to travel out to them, so they can get more accomplished in a single day,” he said, adding that virtual hearings also make it “easier for sureties to attend in court.”

“A surety, in the past, would have to take time off work, conceivably, to show up in a court, which is a pain and a hassle and it makes things more difficult, but with virtual hearings that’s been accomplished much more easily. So, there’s some parts of these changes that I think should be kept because they have served to reduce costs and save time for everybody involved,” he said.

“With respect to the family law practice, it’s similar feedback from our members,” he said, noting that Zoom motions and case conferences are proceeding virtually, which saves costs.

“There’s plenty of savings, both in time and money, because lawyers don’t have to travel to the courthouse and they’re able to save their clients’ money because they’re able to get these case conferences and motions done virtually over a much shorter period of time,” he stressed.

Like Bonn, White also raised the issue of civil jury trials being delayed and noted the notice of adjournment in London.

“It’s not clear to me that that will happen in Toronto and other jurisdictions, but it seems entirely possible that that would be the case,” he said about the notice.

Acknowledging the delay in civil jury trials, White explained that he is a “proponent of a civil jury.”

“On a personal level, I feel civil juries are a really important component of the civil justice system. And because it … has been much more difficult, at least for the past year and a half, to proceed with a jury there have been delays to trials as a result of that. Keeping in mind now that criminal jury trials are prioritized, it’s expected that there will be some more delays, but you do see light at the end of the tunnel, and you do hear things anecdotally about civil jury trials proceeding. We’re all optimistic that it won’t be too much longer before that’s a regular occurrence,” he added.

White stressed that “everyone appreciates what a unique and difficult time COVID presented to everybody, and the courts have actually done an incredible job in terms of pivoting and moving forward with virtual hearings and they did it relatively quickly.”

“It’s a real credit to the judges and the courts that they were able to do that because it prevented things from potentially being much worse,” he added.

White noted that “on the whole I think the court did an incredible job of keeping things moving forward. And sometimes, as lawyers, we complain about the delays, but there have been some positives to come out of it and I don’t think anyone is suggesting that anyone could have done a better job than what was achieved.”

“It’s even hard now, as most of us have got two jabs, to imagine just how bad things were. We’re already, I think, on our way out of it and to think about where we were and where we’ve come, it does speak to the fact that a lot was accomplished in very little time,” he added.

 Justin Nasseri, a founding partner at Ross Nasseri LLP

Justin Nasseri, Ross Nasseri LLP

Justin Nasseri, a founding partner at Ross Nasseri LLP and chair of the executive committee of the Ontario Bar Association’s (OBA) civil litigation section, told The Lawyer’s Daily that despite the abrupt shutdown of the legal system when the pandemic first hit, the courts demonstrated an “admirable adoption of technology,” which brought issues back on track rapidly.

However, he noted that the legal system “hit a wall around March and April” of 2021, which has led to delays. Nasseri believes this is due to burnout across the profession as well as the large number of trials and hearings that have had to be rebooked from last year.

“I think that those are the two big factors that have contributed to the backlog and delay we find ourselves in now,” he said, noting there are delays across the province, not just in London where civil trials have been adjourned.

Nasseri said the Brampton courthouse is “very backed up right now” and “it’s very difficult to get dates for even applications or short motions.”

“I just booked a one-hour motion in an estates matter that, the quickest date I could get, was December 15th. And that’s for a one-hour motion,” he said, noting that he made the request two weeks ago to the Toronto estates list.

“There’s a scarcity of court time and judicial resources and, like I said, I think this exhaustion and burnout … is one factor and I think the other is just so many of those hearings and proceedings that were adjourned at the outbreak of the pandemic have now filled up court time in the immediate future, making it difficult to get newer things listed and to get court time,” he explained.

Nasseri said that even though to some extent the professions’ “hands are tied because if it’s difficult to get a date” he believes lawyers can still “treat each other with civility and kindness, particularly when we’re going through these difficult times.”

“I know this pandemic has affected a lot of lawyers negatively. And I know litigation is an adversarial process, but you don’t have to undermine the zeal of your advocacy to have a civil discussion to narrow issues, to try and get the clients on the same page to achieve resolution,” he said, stressing that lawyers should be making use of electronic mediations.  

“You can get Zoom mediations in decently short order. Use mediations, speak to opposing counsel, even informally, to try and convene settlement conferences and have productive discussions and bear in mind the reality we have, which is court time is going to be difficult to get, [and] that’s going to result in a delay in proceedings being adjudicated,” he said.

Nasseri noted that given these delays, “clients and the lawyers have more of an incentive than ever to try and be reasonable and have constructive discussions instead of getting entrenched in positions and then waiting for a court to sort it out at some time in the not so near future.”

He stressed that while the pandemic has “contributed to our profession accelerating and bringing in much needed reforms and adoption of technology,” they can “exacerbate the burnout too.”

“The availability and the adoption of technology has also created pressures to be available all the time, online all the time and I think that has been taxing on everybody. I think it’s been taxing on lawyers, on decision makers, and on court staff,” he said, noting that monitoring the mental health and well-being of a team is key.

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