The Lexpert Special Editions profiles selected Lexpert-ranked lawyers whose focus is in Corporate, Infrastructure, Energy and Litigation law and relevant practices. It also includes feature articles on legal aspects of Canadian business issues.
Issue link: https://digital.carswellmedia.com/i/1511707
6 www.lexpert.ca Feature McCarthy Tétrault LLP partner and Toronto litigation and dispute resolution practice lead, calls an "intra-performance" or "inter-contrac- tual" dispute that needs to be resolved quickly. ese private justice systems are facilitated by statutes such as the International Commercial Arbitration Act, but they aren't for everybody. "If you're a smaller company, you can't afford arbitration or mediation because you're paying one more professional [the arbitrator or the mediator] in addition to your lawyer. And you're paying for the infrastructure our taxes are intended to pay for through the civil justice system. at creates an access-to-justice concern for small businesses." (Besides charging for the medi- ator or arbitrator, alternative dispute reso- lution companies can also charge for room rentals or administrative fees.) Besides the cost incurred by clients, there is also a cost to the justice system. Common law develops on the back of case law, as one decision serves as a reference or an example for the next. Sutton notes, for instance, that the law around good faith in the perfor- mance of contracts is a common law prin- ciple, "but if you have commercial parties increasingly opting out of the public system, you'll start to get fewer cases that can act as precedents for subsequent cases." Quebec's civil law system isn't as depen- dent on precedent as the rest of Canada, but it does share some other commonalities with the rest of the provinces, including court delays. To avoid dragging matters out, Éric Préfontaine, a litigation partner at Osler, Hoskin & Harcourt LLP in Montreal, says he and his colleagues "do as much as possible to suggest settlements." He admits that getting clients to think about settling is hard, especially at the beginning when they are less open to the idea because emotions are running high. However, he points out that the time it takes for a case to go through the courts tends to negate the benefits of a possible win. He explains to them: "It's a process that is going to take time. It will cost you a fortune to be told by a judge that you were right – and there's no guarantee of that … and there is nothing in Quebec that you can reasonably expect to be compensated for because in Quebec [awarded] costs are very, very minimal compared to Ontario." One advantage Quebec does have is the settlement conference process. Run by current, retired, and supernumerary judges, they work almost like free mediation services, and as long as both parties agree to participate, Préfontaine says they are effi- cient, function well, and divert cases that don't need to be heard in open court away from backlogged courts. Nova Scotia's court system is a bit better, at least comparatively. While there are back- logs, they aren't as acute as in provinces like Ontario or Quebec. Ryan Baxter, a professional regulation partner at McInnes Cooper in Halifax, says that may be due, in part, to the province's smaller size, the resources it has put into the court system, or actions such as the Nova Scotia Supreme Court adopting default positions on the format of the proceedings this year. However, Nova Scotia's court took a step back despite its step forward. Although electronic document filing was permitted while COVID-19 was raging , the system has reverted to paper filings, says Baxter. "The bar in Nova Scotia is optimistic and is hopeful that our judi- ciary will continue to explore and imple- ment different ways of doing business that will be more efficient for the users of the judicial system." Nova Scotian delays still cause prob- lems, especially for people unfamiliar with the system, such as the increasing number of self-represented litigants (SRLs). These people have not employed lawyers (often due to the costs) and are navigating the court system independently. While Baxter can't advise SRLs if they are on the DELAYS BY PROVINCE Quebec: 2021–2022 – an average of 593 days between litigants filing their claim in the Small Claims Division (for claims less than $15,000) and trial British Columbia: 2022 –10.9% of all long chambers applications, 24.6% of civil trials, and 14.4% of family trials delayed by Supreme Court because of the lack of judicial resources Alberta: routinely more than 9 months for an application longer than 20 minutes to be heard by a judge in Edmonton or Calgary and 2 to 3 years for a trial longer than 5 days to be scheduled Ontario: currently more than 4 to 5 years for a civil action to proceed from commencement to trial "IT WILL COST YOU A FORTUNE TO BE TOLD BY A JUDGE THAT YOU WERE RIGHT – AND THERE'S NO GUARANTEE OF THAT" ÉRIC PRÉFONTAINE OSLER, HOSKIN & HARCOURT LLP Source: Delay No Longer. The Time To Act Is Now, The Advocates' Society