Ontario Grapples with Growing Trial Backlog Amid COVID-19

Ontario Court House wall

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.

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