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Speaker's Corner: Civil delays and access to justice

In the 2016 decision of R v. Jordan, the Supreme Court of Canada revisited s. 11(b) of the Canadian Charter of Rights and Freedoms.

The section states that an accused person has the right “to be tried within a reasonable time.”

In Jordan, the court outlined a new test in order to alleviate the “culture of delay.”  

In the decision, the court outlined a framework containing a ceiling for delays in trials, beyond which the delay would be considered to be unreasonable.

This ceiling was 18 months for trials in provincial court and 30 months for trials in the superior court system from the time of charge to the end of the trial.

In the opening of the decision, the court stated, “Timely justice is one of the hallmarks of a free and democratic society.”

Yet, even though this decision centred around the delays of the criminal systems, the court did not specify the ruling applied to “criminal” affairs.

In our opinion, access to and adjudication of all legal matters is at the very core of our democratic society.

As noted in the Jordan decision, delay is present in not just the criminal but also the civil court system, for which there are several reasons.

For instance, there is much delay in the appointment of judges and filling vacancies on the bench.

All over Ontario, as well as specifically in Toronto, there were several judicial vacancies waiting for an appointment at the end of 2016, leaving the civil branch of the Superior Court and Court of Appeal missing a number of judges.

In addition, with growing Toronto and Ontario populations, the number of available judicial positions has not increased proportionately with the population.

Combined with a focus on criminal trials after Jordan, this means the backlog for civil matters just gets longer.

Civil delays cause major issues, primarily for those who have meritorious claims and are seeking enforcement of those claims.

Delays in justice may well mean the defendant reorganizes or goes bankrupt while a creditor waits.

It also means a defendant can deny the creditor money that they deserve for longer, or even forever, if judgment can be denied until bankruptcy.

The Charter does not explicitly provide for economic rights, such as a right to a fast civil trial.

However, if delays continue in the civil context at the current rate, there is a danger that a rights infringement may take place under s. 7 of the Charter — “7.  Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

The civil justice method is the only legal way for persons to legally resolve conflicts within society, and it is a pillar of our democracy as well as justice system.

While we may not be at this step yet, it is clear that the rights of those needing trials will be infringed upon if at some point it is impossible to get a trial.

Judicial independence is also a key pillar of our democracy.

It is not hard to see either how if a government fails in its duty to appoint judges in a timely manner that this might also be a breach of the unwritten constitutional principles.

From an employment law perspective, the area in which we practise, most litigation deals with wrongful dismissal or the length of an employee’s notice of termination.

The idea behind wrongful dismissal laws is to help bridge the gap between employment by allowing an employee the time to find a new job while still remaining paid by their former employer.

When there are significant delays, the very core of wrongful dismissal laws is not served.

That’s because the employee will go without pay in between jobs and face financial ruin, because they have not received the bridge the notice period offers before they, hopefully, land a new job.

If the employee declares bankruptcy as the result of a delay, this can seriously affect their wrongful dismissal claim.

In Jordan, the court states the delay in the system “rewards the wrong behaviour, frustrates the well-intentioned, makes frequent users of the system cynical and disillusioned, and frustrates the rehabilitative goals of the system.”

The bar is experiencing a more active judiciary in order to help ease the backlog.

For instance, there is an expanding scope of summary judgment, post-Hryniak v Mauldin 2014 SCC 7, and more specifically in employment law following Beatty v Best Theratronics Ltd. 2014 ONSC 3376.

However, not all cases can be heard by summary judgment.

In our practice, we have found more summary judgment motions are being adjourned by the Toronto Superior Court as delays creep into the system with lack of judicial resources.
A summary judgment occurring two years after a termination is worse than a trial, not better.

Aside from the current judiciary maximizing the resources available to them to help ease the overburdened system, it would be most helpful to continue to appoint new, diverse judges promptly and, in an ideal world, increase the number of judges proportionately with a fluctuating population.

Andrew Monkhouse and Samantha Lucifora are employment lawyers practicing at Monkhouse Law in Toronto. They focus on civil litigation within the context of employment, labour and disability law.

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