Ontario Grapples with Growing Trial Backlog Amid COVID-19

As the country gradually rolls back COVID-19 lockdown measures, court systems across Canada are considering how to safely reopen their doors. In Ontario, where courts already faced a significant backlog, there have been no jury trials and limited judge-only trials since a state of emergency was declared in March. As a result, numerous personal injury lawyers and their clients are facing delays on the road to compensation.

The province is considering a number of options to alleviate the backlog, including the suspension or elimination of jury trials for certain civil proceedings. In early June, Ontario Attorney General Doug Downey sought input from legal stakeholders on this matter.

“The needs of the justice sector have changed during this outbreak, and the demands on the system will continue to evolve as we begin to see the province reopening in stages,” the Attorney General wrote in a letter to stakeholders. “To address these changes, we will continue to act on the guidance of public health experts, and we will continue to work together to develop new ways of conducting matters.”

Assembling a jury is one of the most time-consuming aspects of any civil trial. The ongoing COVID-19 pandemic will make the process even more difficult. Proponents of eliminating or suspending jury trials say it would allow Ontario to work through its backlog more quickly and provide greater access to justice for a larger number of claimants.

The proposal has support among some personal injury lawyers. One Windsor-based law firm issued a statement reading:

“Although we truly value our clients’ right to have a jury of peers decide their case, the realities of COVID-19 mean that our clients will suffer many more years of delay to get their cases to court. COVID-19 has closed our courts to jury trials. Eliminating juries will avoid more delay because we can immediately try cases ‘online/remotely’ before a single judge.”

In his letter, the Attorney General proposed keeping juries for matters that “engage community values and person’s character, such as defamation false imprisonment, and malicious prosecution.”

The Ontario Trial Lawyers Association (OTLA) also supports a temporary jury trial suspension. In an open letter to the Attorney General’s office, it stated that “the biggest hurdle for many of the postponed and upcoming trials will be constituting juries.”

Steve Rastin, a former president of the OTLA, spoke glowingly of Downey’s letter to Canadian Lawyer.

“I think it’s bold, I think it’s appropriate,” he said. “I think what the attorney general is doing is giving some thought to how are we going to deal with the massive backlog that’s in the system right now.”

“The attorney general is showing inspired leadership. What he’s doing is looking at a fundamental change in our system to help maybe put Ontario back together and back on track in terms of access to justice.”

Rastin’s enthusiasm isn’t shared by all. The Toronto Lawyers Association (TLA) stated in a submission to the Attorney General that jury trials are essential in Ontario due to the province’s unique social makeup.

“Against this social backdrop, civil juries provide a vast array of life experiences including different socioeconomic, racial, cultural and gender-based perspectives,” wrote TLA President Brett Harrison.

There is also concern that eliminating jury trials is an inappropriate solution to an issue that could be solved through modernization and investment. As one Toronto personal injury lawyer asked CTV News: “People keep talking about how it’s too slow and it’s an access to justice issue, but what about devoting the resources they should have done in the first place?”

“There should have been more resources thrown at the judicial system well before this, and I think it’s just convenient now to use the pandemic as an excuse to eliminate or get rid of juries,” they continued.  

Even Steve Rastin agrees that Ontario’s court system is falling behind on implementing new technology.

“[What] we’ve realized is that our jurisdiction has not gone nearly as far down the road to modernization as some other jurisdictions in the world,” he said. “In the United States, they’re doing virtual motions, virtual trials, virtual appeals, they have widespread access to court records electronically and things like that.”

The province has several options to address its growing trial backlog. It can eliminate civil jury trials altogether, it can reduce or suspend jury trials, it can bring in new technology to allow trials to proceed remotely, or it can choose another path. Regardless of the decision, it must be made quickly: the province’s backlog is growing every day and preventing seriously injured accident victims from accessing the compensation they need.

If you’ve been injured in an accident, contact Will Davidson LLP today to schedule a free, no-obligation consultation. Our experienced team of personal injury lawyers will assess your case and lay out your options for pursuing a claim. Contact us today to learn more.

Ontario Government announces higher legal fees

On April 1, the Government of Ontario enacted changes to court fees and fee waiver eligibility under the Administration of Justice Act. The changes, which have already been criticized by some personal injury lawyers, are intended to bring the province closer to “full cost recovery,” the Ministry of the Attorney General told the CBC.

Legal fees in Ontario had remained stagnant in the 15 years prior to the changes. The new rates will reflect the cost of doing business today; according to the Ministry’s statement to the CBC, the provincial government recovered less than a third of its costs prior to April 1 update.

Unfortunately, many in the legal community believe the rate changes will disproportionately affect people whose ability to pay legal fees was already tenuous. Individuals who choose to represent themselves in court will be particularly stretched. One civil litigator in Ottawa told the CBC that the move “seems to be keeping people out of the courthouse.”

At Will Davidson LLP, our team of experienced personal injury lawyers believes passionately that every Ontarian deserves full access to justice. We offer free, no-obligation consultations and work on contingency to support this aim.

Legal professionals have also expressed confusion regarding the structure of the fee increases. Among the almost 80 changes enacted, increases range from a few dollars to double the pre-April 1 cost.

For example, the cost of filing a lawsuit rose just seven dollars, but advancing lawsuits through the civil court system will now be significantly more expensive. In the small claims court, the price of applying to appear before a judge has doubled, to $180; the price of setting a trial date in civil cases has also doubled, to $810; and the price of scheduling a hearing in family court is now $420. These elevated expenses may prevent some lawyers from working on a contingency basis, and may push others to delay setting trail dates.

“In Ottawa, we often don’t get a date for two or three years,” one Ottawa personal injury lawyer told the CBC. “The processes of moving toward trial is painfully slow. So getting something down for trial as soon as possible is very important because if you don’t, you may be making an injured person wait many years.”

One change that will benefit plaintiffs, however, is being made to fee waiver eligibility. Prior to this April, plaintiffs had to make less $24,000 per year to qualify for a waiver; today, plaintiffs making less than $30,000 will qualify.

If you or a member of your family has been injured in an accident, contact Will Davidson LLP today to learn how we can help. Our experienced team of personal injury lawyers will provide advice and guidance as you initiate your claim.

Ontario personal injury lawyers worry Law Society policy is step towards non-lawyer ownership

In September 2012, the Law Society of Upper Canada (LSUC) formed its Alternative Business Structures (ABS) Working Group to explore alternative options to permitted law and paralegal firm structures. In general, ABS’s – which are legal in England, Wales and Australia, but not Canada – allow individuals without legal licenses to own organizations that provide legal services.

Alternative Business Structures are a controversial topic among Ontario personal injury lawyers. Their proponents argue that they could lead to innovation and wider access to legal services, while their detractors believe they increase the risk of conflicts of interest and compromised confidentiality and solicitor-client privilege agreements.

In September 2017, the LSUC’s Board of Directors approved, in principle, “a policy to permit lawyers and paralegals to provide legal services through civil society organizations (CSOs), such as charities and not-for-profit organizations,” according to the Law Society Gazette. The society stated that the policy aims to improve “access to justice for individuals who may have legal issues but who have traditionally faced barriers to receiving legal advice from a lawyer.”

The move was met with criticism by some Ontario personal injury lawyers.

“It’s just simply the first step and, two years down the road, we’re going to have full non-lawyer ownership of law firms,” one injury lawyer told Law Times’ Alex Robinson. “That’s where this is headed.”

The Working Group originally intended to table the policy in June, but delayed the decision after backlash from prominent provincial legal groups, including the Ontario Trial Lawyers Association (OTLA) and Federation of Ontario Law Associations (FOLA), felt unable to provide sufficient input.

Despite the criticism, the Working Group insisted that the measure would help marginalized individuals access legal aid.

“What I would say to those who take the position that one shouldn’t do a good thing because it might lead to a bad thing is that they should analyze each proposal on its own merits,” Working Group chairman Malcolm Mercer told Robinson. “It would be a shame if the profession, if it was concerned about non-lawyer ownership, would not permit charities and not-for-profits to serve needs that we all know exist.”

Whether the LSUC’s new policy eventually leads to the formation of Australian-style, publicly traded law firms remains to be seen. For now, the LSUC appears to be taking the feedback from Ontario personal injury lawyers to heart and proceeding with cautious, marginal steps along the road to ABS’s.

If you or someone you know has suffered an injury, contact Will Davidson LLP’s team of experienced and knowledgeable personal injury lawyers today to learn how we can help you on your road to recovery.

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