Superior Court addresses civil backlog in virtual trials; OTLA stresses judicial vacancies ‘problem’

By Amanda Jerome

Law360 Canada (December 21, 2022, 3:58 PM EST) -- Ontario’s Superior Court of Justice will be holding two, four-week long virtual trials to “address the backlog of civil” cases that “developed as a result of the COVID-19 pandemic.” While the initiative is welcomed by the bar, the Ontario Trial Lawyers Association (OTLA) notes that more needs to be done to address the “much bigger systemic problem” of judicial vacancies that is contributing to the delay in access to justice.

In a memo, issued Dec. 14, Superior Court Chief Justice Geoffrey Morawetz noted that “in order to provide timely access to justice in civil cases,” the Regional Senior Judges Council will schedule “virtual trial sittings for civil, non-jury cases” and that “judicial resources from across the province will be pooled to provide pre-trial and trial dates.”

“The first sitting will target cases in Southwest Region. Cases will be selected based on age and likelihood of being scheduled for trial within a reasonable amount of time. During the second sitting, cases from all regions will be considered for inclusion based on the same criteria,” he explained.

According to the memo, the sittings will take place Nov. 14, 2023, to Dec. 8, 2023, and April 1, 2024, to April 26, 2024.

In response to request for comment from The Lawyer’s Daily, a spokesperson for the court noted that as Chief Justice Morawetz “said at the Opening of Courts this year, ‘civil proceedings are an area that are ripe for major change — the type of change that would strongly benefit litigants and the court.’ ”

“The chief justice envisioned a more responsive and flexible system that ‘adheres to the needs of the justice system without compromise and includes a nimble group of judges who can hear trials on a regular basis, bringing judges to the litigants,’ ” the spokesperson explained, noting that the virtual trial sittings is “the beginning of the implementation of this initiative.”

“A team of civil judges has been scheduled to deal with trials in any region of the province. Two civil trial sittings of the court, over and above existing regional trial sittings will be scheduled, with all matters being heard virtually. Judges from across the province will be pooled to conduct both the pretrials and trials. Cases will be selected based on age and likelihood of being scheduled within a reasonable time,” the spokesperson added.

“While in-person hearings are an integral part of the judicial system, we also know that the availability of virtual hearings has been transformational for the courts. When deployed for the right types of proceedings, virtual hearings open the court to greater flexibility and accessibility,” they specified.

OTLA president Maria Damiano

OTLA president Maria Damiano

Maria Damiano, president of the OTLA, said that while the initiative is “definitely the kind of innovative approach that we need to begin to address the growing problem with the backlog in civil courts in general” there is “a bigger problem here.”

“Our worry, of course, is that there’s such a tremendous backlog” from COVID and beyond and “will this necessarily allow us to catch up?”

“I don’t think two sittings are enough. However, it will hopefully start to address a good chunk of those shorter cases that could not proceed to trial because of COVID,” she explained.

Damiano stressed that there is a “much bigger systemic problem that needs to be addressed:” the “tremendous amount of judicial vacancies” currently at the Superior Court.

Damiano harkened back to the Opening of the Courts ceremony in October, where Chief Justice Morawetz “reported that at the pace we’re going now,” by “February 2023 we’ll have 33 vacancies in the Superior Court of Justice.”

“Unfortunately,” she added, “the federal government does not appear to be filling those vacancies quickly enough.”

She stressed that the bar knows that “Chief Justice Morawetz has been pushing for those spots to be filled quicker” and noted that the OTLA has written to Minister of Justice David Lametti to “express a profound concern about the number of judicial vacancies.”

At the time of publication, the OTLA had not received a response from Lametti.

Damiano described the problem as “two-pronged” as “it’s not only the vacancies, but also the fact that our judicial complement is not big enough in Ontario, given the population we service.”

She stressed that the OTLA “absolutely welcome this initiative by Chief Justice Morawetz and the Regional Senior Judges Council” and that “this is the type of innovative thinking we need, and problem solving we need to get all hands on deck.”

“Will it solve our pre-COVID and COVID backlog? No, but it’s a good first step,” she added, noting that “if we can deal with the more systemic problems, with judicial vacancies and increasing the judicial complement, we will hopefully get things on track again.”

Damiano explained that what OTLA members are experiencing in the court system right now is “concerning.”

“I was contacted by a member yesterday who said she has just scheduled a non-urgent motion in Toronto, and it's been set for December 2023,” she said, noting that if lawyers have to wait a year before they can progress with a case, “that’s a huge problem.”

As a further example of the backlog, Damiano noted that she’s booking trials for her own practice into 2025.

“Most judicial regions it’s 2024-2025 to get a trial day,” she said, noting “there's not enough judges to deal with all the matters.”

The OTLA president acknowledges that criminal and family matters take precedence over civil trials, but civil matters involve “real people” who have suffered.

She explained that some OTLA members are waiting years to get to trial only to be “turned away because there are no judges available to hear the matter.”

As an example, she pointed to a member in Windsor whose “civil matter was set to proceed to trial on October 11, 2022.” However, a “few days before, they were told that there was no judge available to hear a civil matter.”

Therefore, the matter was “set down again and the new trial date is now September 16, 2024.”

“It’s very costly for the parties involved,” she stressed, “because you have to prepare for trial. You pay your experts, you have your experts take days off from busy practices, medical experts taking off clinic days or surgery days and then to be told a few days before that you have no judge.”

“There’s huge cost to the system,” she added.

Damiano emphasized that this is “absolutely” an access to justice issue.

“The reality is civil matters include personal injury matters, which involve real people who have suffered real injuries. They’re waiting for years to be able to get to their day in court, and they've suffered real injuries which impact their ability to care for their families, to earn a living, to be protected members of society, to be able to get the necessary rehabilitation and other services they need to get back to, hopefully, their pre-incident levels. Every day that they’re waiting for their trial date or their trial gets delayed is another day where they’re not getting the proper treatment they need, or they’re not getting the money they need to help take care of their family, so it’s having real impact on real people,” she said.

She further stressed that the court’s initiative being virtual is “great because it doesn’t matter what judicial region you have to reach out to. If a judge has no matters all of a sudden because his criminal matters collapsed, or his other trials settled, that judge will now be able to hear a matter in a different judicial region by using this program, which is amazing.”

“Our organization is really pushing to ensure that victims of accidents are getting access to justice. We are advocating and pushing hard. We are very glad to see this initiative which will start to solve part of the problem in the backlog,” she concluded, noting that she was “heartened” by Chief Justice Morawetz’s comments on civil law at the Opening of the Courts ceremony.

“My hat is off to judges right now. It’s such a tough time. They’ve had to be so innovative to keep the system going throughout COVID,” she added. “It’s a tough situation all the way around for everybody in the system.”

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