June 24, 2020 As Ontario Superior Court Chief Justice Geoffrey Morawetz sees it, Canada’s poor ranking in the Enforcing Contracts indicator found in the World Bank’s Doing Business 2020 study is but one measure by which the effectiveness of our courts should be gauged. The study, which tracks the time and cost for resolving a commercial dispute through a local first-instance court and the extent to which nations have adopted practices that promote quality and efficiency in the court system, ranked Canada a lowly 100 of the 190 nations surveyed.
“I note that the World Bank appears to only examine the Toronto region of the SCJ [Superior Court of Justice], and it appears to only measure one or more cases that proceeded through to trial,” Morawetz said in an e-mail responding to written questions from The Lawyer’s Daily. “It does not appear to measure matters that have been resolved early in the process through effective judicial case management. In other words, it assumes that the best measure of effectiveness is an outcome by trial, when we know in excess of 95 per cent of civil matters are resolved much earlier with the assistance of active judicial management.”
Still, Morawetz is careful to say that he does not dispute the conclusions reached by the World Bank study nor the methodology used.
“I simply point out that the effectiveness of the SCJ’s handling of civil disputes should not only be measured by matters heard in Toronto or by matters that were disposed of by way of trial,” he wrote. “But I note that [the study] may not reflect how effectively the court is throughout Ontario in helping civil litigants reach timely and cost-effective solution.”
Indeed, the World Bank study does not consider regional disparities, such as variations in access to courthouse facilities, workload pressure and judicial resources.
“There are also more judges in the Toronto region, but that also means there are, more regularly, vacancies that arise in the Toronto region as judges retire or elect supernumerary status,” Morawetz said. “If vacancies are unfilled for extended periods of time, judicial shortages can delay the timely hearing of a civil trial.”
Still, it’s important to remember that the World Bank study’s rankings are comparative and the methodology used is consistent, at least when it comes to comparable jurisdictions such as the U.S., the U.K. and Australia: in all cases, the study measures the same metrics, namely the time it takes to get to trial in a major commercial centre.
And what the consistent metrics tell us is that it takes 910 days to enforce a contract by way of trial and judgment in Canada. That’s more than twice the duration in the U.S. (444), the U.K. (437) and Australia (402).
True, more than 95 per cent of civil matters in Ontario are resolved much earlier in the process. What’s unclear is the extent to which the exigencies of delay and cost contribute to these settlements. Put another way, how is justice affected if trial is not a practical possibility for the vast majority of litigants?
“We know that the time-out to hear civil matters must be improved — it is worse in some regions than in others,” Morawetz wrote. “Without question there are areas where improvements to Ontario’s justice system are needed.”
Morawetz cites “lack of modernization and courthouse facilities limitations” as among the prime obstacles to reducing delay.
“For example, while there is an online filing tool for many civil pleadings, there is no process for electronic documents to be received by judges, most notably motion material,” he wrote. “There is also no online scheduling platform. And until the COVID-19 crisis, telephone and videoconference platforms were not consistently available for dealing with procedural or scheduling matters.”
To be sure, that’s not the only problem. Shortages of courtrooms, conference rooms and judicial chambers in busier Ontario centres like Brampton, Newmarket and Milton also weigh heavily on the courts’ effectiveness.
And while there’s no sign that governments (especially in light of the enormous increase in the public debt engendered by the pandemic) are prepared to invest the billions that new physical infrastructure would require, COVID-19 has, without a doubt, catalyzed the modernization process.
“We are working with staff in the attorney general’s office to bring in desperately needed technological innovations in very short order, and which will result in real efficiencies for the court,” Morawetz wrote. “For example, if judges and masters were able to remotely access filed materials, it would give them greater flexibility to hear matters, without being limited by the location of paper files. For judges who regularly circuit to different court locations, access to an electronic file would have enabled them to continue to manage a case while circuiting and without having to be physically present where the paper file is located.”
As it turns out, an SCJ Modernization Committee, which worked with the Ministry of the Attorney General to address the lack of technology on the court, had been in place for several years.
“But aside from a few pilots, this committee was not successful in achieving tangible results,” Morawetz acknowledges.
So, what’s different this time around: will the impetus of the pandemic be sustained, or will it peter out?
Here, Morawetz is hopeful.
“There is greater chance of success this time because of the attorney general’s full support to modernize our justice system, supported by a recent public statement by him that funds will be invested to achieve this goal,” he said. “There is also broad support among all major bar organizations and the judiciary to modernize the justice system.”
That the end of the pandemic will not put an end to its consequences for the civil justice system could well provide further impetus.
“What’s going to come out of COVID-19 is not only the fallout from the delays caused by rescheduling during the pandemic, but also a surge in COVID-related cases, including contractual disputes and class actions,” says Chantelle Cseh, a partner in the dispute resolution, competition litigation and class actions practices at Davies Ward Phillips & Vineberg LLP’s office in Toronto. “And that’s a large part of what has created a sense of urgency among lawyers, judges and politicians that extends not only to interim solutions but also to permanent ones.”
Still, modernization and political will aren’t the whole story. There is also the habits of the stakeholders in the civil justice system. More about that in part four.