My articling principal was called to the Bar in 1978. For the first decade or so of his practice, he was in Court nearly every day. He was in Court for motions, pre-trials and trials. Because he was in Court so often, it was absolutely necessary that his office be downtown so that he could be close to the Courthouse. The Courthouse was an extension of his office.
I want to be clear that my articling principal managed a very successful civil litigation law firm; and did not have a criminal law practice. Criminal lawyers are in Court far more often than their civil litigation counterparts. In 2022, civil litigation lawyers are not in Court everyday. But, they used to be.
Trials back then could be as short as a half day, or as long as 2-3 days. Running a week long trial (5 days) was seen as a ultra marathon! Accessibility to the Courts existed! You would not have to wait years and years for a Pre-Trial or for a Trial date. You could call the Court and get a motion date and have your motion heard by a Judge in a very reasonable period of time.
The Court was there to serve the important public function of the administration of justice. Court staff could afford to take the time to get on the phone (or even speak to you person!) with lawyers about what to do if documents weren’t accepted by the Court and what needed to be done so that the materials would get accepted.
The lawyers knew the name of the Court staff and vice versa. It was an amicable and symbiotic relationship. Both sides needed each other to make the system work so that justice would flow efficiently.
As the years went by, the Civil Justice system got hollowed out. More cases, fewer staff, more draconian rules, less time to get things done with more work. Nothing seemed to flow as well as things did in the “good old days“.
As a young lawyer, I got a very small glimpse at how things used to be done. I was in Court very often arguing motions, attending at Call Over Court, Trial
I wish to share a classic example of our experience getting a long motion heard in Guelph. Not to single out the Courthouse in Guelph, but it’s a good illustration of what personal injury lawyers and civil litigators are seeing across the board.
Our office, along with a Defendant representing an automobile insurer needed (and still need) to secure a long motion date.
The motion was booked in November 2021.
The court gave us a motion date before a Judge in June 2022. This is an 8 month wait from the time the motion was booked until the motion gets heard. This sort of wait time would not have happened in the 1970’s, 80’s, 90’s or in the early 2000s.
The parties serve and file their materials with the Court through the online portal.
As the motion date approaches, the parties try to confirm the motion (as required under the Rules).
Yet the Court refuses to accept the confirmation forms and tell both parties that no Judges will be available to hear the motion (so why book it 8 months in advance in the first place?!?!?!).
Part of the Court’s rationale for not hearing the motion was that it was not confirmed pursuant to the new region specific Notice to Profession which only impacts Courts in the Central West Region (such as Guelph). The Notice to Profession released in April 2022 (6 months after the motion was booked in November 2021). The Notice to Profession is 41 pages in length. We were directed to page 34 which states:
iv. Confirming the Long Motion/Application
Unless otherwise directed by a judge:
• All LONG MOTIONS must be confirmed by emailing Confirmations (revised form 37B) no
later than 2pm, 21 days prior to the hearing date!!!!
• All Long APPLICATIONS (revised form 38B) must be confirmed by emailing a confirmation
no later than 2 pm, 5 days prior to the hearing date.
Failure to file a Confirmation will result in the long motion/Application hearing date being vacated and made available to other parties on a short notice basis.
Confirmation forms must be uploaded to CaseLines into the correct event bundle. The
motions judge will only have access to the specific event bundle.
v. Uploading the Long Motion and Application materials
35
All long motion and application materials must be uploaded to CaseLines at least three (3) days
before the hearing (as the CaseLines invite will be sent out at least 3 days prior to the
hearing).
So the motion date which had been booked 8 months in advance, was vacated because of a new practice direction which required the parties to confirm the motion date another 21 days in advance?!?!?!
I have never lived in a Fascist or Communist Country; nor have I lived in Eastern Europe before democracy swept through. But I’ve heard stories, read books and studied history. Things didn’t work because the people at the top didn’t want them to work. I can’t believe that in Canada; these are the steps we need to jump through in order to have our “day in Court“.
How does a member of the public have any confidence in our Civil Justice System when it works this way? It’s as if the Court does NOT want to do its job and administer justice. It would rather look to any excuse NOT to hear civil matters.
Is it an excuse that civil courts are under staffed, and over worked and there’s a shortage of judges?
Is it an excuse that they are still trying to deal with the backlog caused by the COVID-19 Pandemic?
Is it an excuse that Criminal Matters need to take precedent after the Supreme Court of Canada’s ruling in R. v. Jordan on what constitutes a reasonable delay?
I don’t think that any of these things are excuses in a wealthy G-7 democratic country and the largest province in the country. It’s an example of how our civil courts have failed the public. They are hiding these failures under the guise of new draconian rules which nobody seems to know or can follow; which seem to change from month to month. This is not how justice works. This is an example of ineptitude and a reflection of the Courts being in over their heads for something they’ve been doing since the dawn of Confederation.