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.

Time Limits in Personal Injury Law

One of the first pieces of advice that a personal injury lawyer offers potential clients is to act quickly. This isn’t done to pressure clients into legal action – it’s done because personal injury lawsuits in Ontario are subject to time limits, sometimes referred to as statutes of limitations, under the province’s Limitations Act. In the following article, we’ll explain how time limits affect personal injury claims, why they are in place, and their variations and exceptions.

Time Limits in Personal Injury Law

Ontario’s Limitations Act states that ‘Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.’

In other words, people who have been injured by the error or negligence of another person generally have two years from the time of the accident to file a claim against an insurer or the at-fault party. This rule applies to anyone that suffers immediate serious injuries, such as spinal injuries, brain injuries, paralysis, etc.

In cases where the injury is discovered later than the date of the accident, the two-year limitation period starts from the moment of discovery. When the injury initially appears to be minor but deteriorates to the point where a lawsuit is warranted, the limitation period starts at the moment it becomes clear that legal action is necessary.

Why Are Time Limits in Place?

Ontario’s two-year limitation period is predominantly in place to protect defendants. Almost every personal injury lawyer agrees that limitation periods are necessary – claims filed decades after an accident would be plagued by insufficient evidence, unreliable testimony, and other challenges.

Some lawyers believe two years is insufficient, however. The number was chosen because it was presumed to give plaintiffs and defendants enough time to hire representation, and provide lawyers with leeway to perform research, gather evidence, file paperwork, and generally build a case. However, personal injury lawsuits can be extremely complex and time-consuming. Two years sounds like a long time, but it isn’t always enough.

Variations and Exceptions

The standard two-year limitation for filing a claim isn’t the only time limit affecting Ontario injury victims. For example, victims in motor vehicle accidents must notify their accident benefits insurer within seven days that an accident as occurred; they then have just 30 days to submit an accident benefits application.

For more information about accident benefits representation, click here.

Motor vehicle accident victims also have just 120 days (three months) to notify the at-fault party or insurance provider that they intend to file a lawsuit. Doing so does not require you to pursue a claim.

Unique time limits also exist for claims against local and municipal governments. Claims against government agencies include those involving poorly maintained streets and sidewalks, icy or snowy surfaces on city property, injuries involving public transit or city maintenance vehicles, etc. In these cases, plaintiffs are required to provide written notice within 10 days of the accident. The notice must include the date, time and location of the accident, and other details.

Regarding the standard two-year limitation period, two important groups are largely exempted: minors, whose two-year limitation period begins when they turn 18, and individuals who are mentally incapable of initiating a claim.

Contact an Experienced Personal Injury Lawyer

For more information about limitation periods in personal injury law, filing a personal injury claim, filing a claim for accident benefits, or any subject related to personal injury law, contact Will Davidson LLP to schedule a free, no-obligation consultation with an experienced personal injury lawyer.

Will Davidson LLP’s personal injury team has represented seriously injured accident victims in Ontario for over 90 years. Our expertise ranges from motor vehicle accidents to medical malpractice claims to slip and fall injuries.

Will Davidson LLP is proud to offer legal representation on a contingency basis, meaning you will not be charged hourly fees for our services. Instead, our team will accept a pre-approved percentage of your settlement at the time that it is delivered. This arrangement is beneficial for two reasons: first, it ties our payment to the success of your case; we don’t get paid unless you receive compensation. Second, it allows financial flexibility during your recovery. Serious personal injuries can have lifechanging consequences. You may no longer be able to work and may need long-term medical care, rehabilitation, and home care. You may even need to explore home renovations or long-term care options. By foregoing upfront payment, we hope to reduce financial pressure and make it possible to access the resources you and your family need.

Call today to discuss your legal options and review the viability of your claim. Our team will provide the compassionate, committed support you need during this difficult period of your life.

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