Lexpert magazine features articles and columns on developments in legal practice management, deals and lawsuits of interest in Canada, the law and business issues of interest to legal professionals and businesses that purchase legal services.
Issue link: https://digital.carswellmedia.com/i/1541334
www.lexpert.ca 5 Graham says the changes have been a long time coming. She represented one of the parties in Hyrniak v. Mauldin, a landmark Supreme Court of Canada case in which the high court supported a broad interpreta- tion of summary judgment rules. According to the high court, this could help simplify pre-trial procedures and ensure that claims are adjudicated and resolved promptly. e high court referred to protracted trials, "unnecessary" expenses, and delays in the civil justice system requiring a "shi in culture." "e court was saying then – and this is over 10 years ago – access to justice is a problem and there needs to be a culture change in the way we think about delivery of justice in the province," Graham says. e case had originated in Ontario. e CRR Working Group referenced Hyrniak v. Mauldin in its April report, writing, "ere is consensus that the problem of access to timely and affordable civil justice has only gotten worse" since the SCC's 2014 decision. e group added that the issue was compounded by the high court's landmark decision two years later in a criminal case called R. v. Jordan. at deci- sion imposed 18- and 30-month ceilings on the length of criminal trials, depending on the type of case and venue. e CRR Working Group noted that in the near decade since the R. v. Jordan deci- sion, Ontario's courts have had to redistribute resources to meet those criminal timelines. "e already strained resources available to hear and dispose of civil matters became even further taxed, resulting in considerable delays for many scheduled events in many centres across the province," the group added. Other factors have also contributed to the normalization of protracted litigation timelines. Graham points to the delays intro- duced by the COVID-19 pandemic and says technological changes in business or commercial disputes have also "meant that the number of documents that are getting created in a business context is increasing, increasing, increasing." While "our ability to marshal them and deal with them through the [electronic] discovery process has improved… the sheer volume of a commercial case now compared to 10 or 15 years ago is that much greater," Graham says. "It creates more opportunities for more procedural issues. It takes longer to work your way through them." Matthews, meanwhile, points to a long- standing lack of sufficient judicial resources, like judges, court staff, and available court- rooms. Over the years, long wait times have fostered what he calls a "culture of compla- cency," which refers to "habits that have been developed in commercial litigation over time… in part out of inadequate judicial resourcing that would allow you to move the case forward quickly when you need to." SCC DECISIONS FLAGGING DELAYS AS ACCESS-TO- JUSTICE ISSUES Hyrniak v. Mauldin (2014): The high court supported a broad interpretation of summary judgment rules to simplify pre-trial procedures and ensure that claims are adjudicated and resolved promptly. R. v. Jordan (2016): The high court imposed 18- and 30-month ceilings on the length of criminal trials.