New rules to speed up civil cases

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This article was published 05/09/2017 (2965 days ago), so information in it may no longer be current.

New rules are on the horizon in Manitoba to rein in civil disputes that have been left on the back burner since courts scrambled to crack down on criminal-case delays.

Amid national pressure to deal quickly with criminal cases and a local focus on clearing a backlog of child-protection cases, civil disputes have been pushed to “the back of the bus,” lawyers say, and are suffering from a nearly three-year delay in Manitoba.

A civil case ready to go to trial today won’t get to court until 2020. And that doesn’t include all the paperwork and legal process required before a trial date can be requested, which can take months or years. That means plaintiffs fighting all kinds of legal battles — a homeowner trying to get disputed insurance payouts after a fire, an injured former patient trying to get compensation for an alleged medical malpractice, an academic trying to protect his intellectual property — are in limbo. And defendants have to wait just as long to clear their names, to build on the land they bought from a vendor who may or may not have had the mental capacity to sell it, to finally have a judge decide who among their estranged family members should receive their dead grandmother’s property.

It’s the “ordinary Joes” who hurt the most over these delays, said 37-year veteran lawyer Bill Gange, who has clocked his current wait to get to trial at 31 months.

“The majority of them don’t involve really wealthy players. They’re just sort of ordinary Joes. And the court system was created to help out the little person,” he said. “Really wealthy people, they don’t need to resort to the court system. They can hire independent arbitrators.”

The wait time for a civil trial currently exceeds the 30-month maximum deadline the Supreme Court of Canada imposed for criminal cases in its shockwave-sending July 2016 ruling known as the Jordan decision, which said criminal charges could be thrown out if the cases weren’t completed within a set time frame.

“The Jordan decision is crushing us in civil litigation,” Gange said.

Before the Jordan decision, the earliest available civil trial dates were commonly a year away — still a long wait, Gange said, but now, as the same judges responsible for handling civil and criminal matters must prioritize the latter, the delay has “skyrocketed.”

Manitoba Court of Queen’s Bench Chief Justice Glenn Joyal said the court has been working on speeding up civil cases long before the Supreme Court’s criminal-case deadlines were imposed last summer. New rules are expected to come into effect in January that he said will see civil trial dates set much sooner.

But a solution isn’t as simple, he said, as appointing more judges or allowing civil cases to be heard during the summer months. Court of Queen’s Bench doesn’t run civil cases in July or August in Manitoba, unlike some other provinces that run superior courts year-round. It starts up again Sept. 5.

“Civil cases have seen, now, a slow increase to longer delays than are acceptable,” Joyal said, adding the prioritization of criminal matters has had a “predictable impact” on civil cases, partly because of the “firefighting” courts had to do in the wake of the Jordan decision.

 

“And that’s going to be relatively straightforward to fix, but we can’t let that go any further.”

The goal, Joyal said, is to have civil trials happen between nine and 15 months from the pre-trial hearing, and the trial date will have to be set at the first pre-trial hearing, as opposed to allowing the case to drag on with many adjournments.

The new rules are nearly three years in the making and they were developed in consultation with lawyers as part of a committee process, Joyal said. They’re meant to give judges more hands-on control, proportionate to the level of decision-making each particular case needs.

“You don’t want to use a sledgehammer when a fly swatter is available,” Joyal said. “Otherwise, things become too expensive, too complex and too slow.”

In the meantime, years-long delays have had a “devastating” effect on those awaiting trial, said Dave Hill, who’s been practising civil litigation for 42 years. One of his clients died while awaiting her trial, which was set to happen this October. The date was set in January 2016. Since the Supreme Court’s Jordan decision, delays have increased, he said.

“I tell people that as a result of the Supreme Court’s decision for criminal matters and also as a result of the necessity to get child and family welfare cases through the system much faster… civil cases are at the back of the bus,” Hill said. “So if you’re a defendant and you’re in no hurry to get to court, it works in your favour. It hurts the plaintiffs badly.”

More disputes are being resolved through private arbitration, and there’s even been talk among lawyers of setting up a “parallel judicial system” where lawyers would bring in someone they respect — such as a retired judge — to hear arguments from both sides and make a decision, 44-year civil litigation lawyer Robert Tapper said.

“Even though it might be expensive in the sense you’ve got to pay somebody to do that, you get a result,” he said of private arbitration processes.

“Access to justice is a very serious issue, no question,” Tapper added. “Part and parcel of access to justice is access to a result from a judicial proceeding, and in my mind, that is being imperiled right now, that is being beat up, and one of the things that I hate the most is having to tell a client how long it takes to get in front of a judge and then to get a result. I mean, it’s intolerable.”

Joyal said the Court of Queen’s Bench doesn’t want to lose out to private arbitrators because each decision the court makes helps the law evolve in a public forum.

“Arbitrators, however good they are, are most interested in disposing of the matter. And sometimes that’s what companies want and all they want. But I think there’s something lost when we can’t add to the intellectual side of the law,” he said. “We lose that if we’re not providing a service that’s sufficiently prompt, efficient and attractive.”

katie.may@freepress.mb.ca Twitter: @thatkatiemay