Victims of road violence last in line in long wait for justice

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Although everyone is facing delays in the system due to the impact of the COVID-19 pandemic, there are some long standing causes of delay that are not connected to the virus that continue to hamper civil justice for victims and need change.

“While I commend the government and the court system for everything they’ve done in trying to adapt to the present situation, there are things that can be done — and should be done — so victims don’t have to face what many have described as extraordinary and egregious delay in getting their matters before the courts,” says Patrick Brown, principal partner at McLeish Orlando LLP.

Currently, one source of constant delay facing road violence victims is the delay caused by the police and the crown in restricting access to critical pieces of evidence. Despite counsel filing Freedom of Information requests for the complete police file or Crown file, they are repeatedly faced with pro forma denials based on either an ongoing investigation or prosecution of the provincial offender or the criminally accused. Vital sources of evidence that would allow for meaningful discussions to be held between civil counsel are withheld only leading to further and ongoing delay. These include witness statements, videos, reconstruction reports and photographs. The repeated response to the request is that they will not be fully disclosed until the provincial offence or criminal proceedings are concluded. Although consent on behalf of all parties can open up the production, this is seldom given. Therefore the victims only choice is to force the matter before the court and seek an order.  Not only does this take time, it is an added and unnecessary expense. As time goes by, memories fade, evidence is lost and it’s not just delay but prejudicial — and unfair — to the victim.

“There should be a change to the law where the victim is granted automatic access to these productions with the onus on the third party or the accused to argue it is not in the interest of justice or fairness for the victim to have full access,” Brown says. “The automatic denials and lack of consent is burdening the system with unnecessary delay and costs.”

Along the same line, civil proceedings are also delayed while the provincial or criminal proceedings arising out of the same event go ahead. These side proceedings can at times go on for years. The vast majority of insurance defence counsel refuse to produce their client’s for discovery until the provincial court or criminal court proceedings are concluded. The only option to force the issue for the victim is to bring motions and seek court orders, which Brown says is “just another layer of delay that could be prevented by a simple change to the Rules of Civil Procedure.”

Many of the people who are injured in these crashes “suffer ongoing and serious disabilities making  life extremely difficult” and delaying their civil case for fair and reasonable compensation is both “unfair and unnecessary,” Brown says. He calls for the changes above so as to ensure victims are not victimized twice by delay, especially when the majority of the delay according to Brown is caused by a provincial prosecution that results in small and insignificant fines.

Another area of delay, Brown asserts, stems from whether or not a particular civil matter should be in worker compensation. This issue arises when there is a question if one of the parties was or was not injured in the course of their employment. As it stands, the defendant insurance company can wait for years before filing an application to stay the civil proceeding and force the matter over to the WSIAT (Workers Compensation) tribunal. This means the lawyer for the victim who may have waited for years to get their civil trial date is delayed once again by the simple filing of an application by the defence — “This has happened to me on a number of cases,” Brown notes — and all of a sudden there’s more waiting and delay. When the application is eventually dismissed, no costs are awarded and the case is then sent back to the Superior Court.

“There has to be a change to the law that requires defence insurance companies and their clients to file a WSIAT application within a specific period of time once a claim is issued and served on them,” Brown says. “Right now there’s not, and that can add another three years to someone’s case even though it may not have any merit at the end of the day. A three month window to file would be more than reasonable.”

Lastly, it is well known that jury trials take longer and are less likely to get heard, especially during COVID. As things now stand, if the defendant files a jury notice, subject to some exceptions based on issues of delay and complexity, the matter will be tried by a jury. When one considers that priority is usually given to criminal and family court matters the victim of road violence or the family that has lost a loved one, will have to sit and wait at the back of the line to get their court date.

“It’s just an accepted standard,” Brown says. “Hopefully the legislature will step in.”

Addressing these common issues that cause delay would make cases move quicker and give victims who have been injured closure and some sense of justice, Brown says, adding “it bears repeating but justice delayed is justice denied.”