It was a court fight that lasted a generation.
The lawsuit went on so long that the small businessman who initiated it tried to make legal history by demanding compensation for the mental anguish caused by the legal process itself.
In Walsh v TRA – begun in 2001, ending in 2023 – the flaws of Canada’s civil justice system were writ large: legal procedures grown wildly out of proportion. Litigants, rather than the courts, steering the process. A new judge installed every few years and trying to get caught up.
The lawsuit was not overly complicated. David Walsh, a small grocer, sued his food suppliers, including Sobeys Group Inc., contending they had misrepresented, in an oral agreement, the prices they would charge him. Nor was Mr. Walsh a self-represented litigant, feeling his way through a mysterious system. His lawyer at trial and on appeal was Paul Dicks, the province’s former justice minister.
In the end, all of Mr. Walsh’s arguments failed – and far from being compensated for suffering caused by the process, he was ordered to pay the winning side’s legal costs. ”I’m not the same person I was – I’m just a shell,” Mr. Walsh said in an interview. He is now 82, and works full-time on the graveyard shift as a security guard to put food on the table.
His advice to people who are considering filing a lawsuit: “You better be ready for the long haul. You spill your guts to your lawyer – it’s like going to Confession. And probably get the same result.”
David Walsh of Bay Bulls, N.L., is now 82, and struggling to make ends meet after an ill-fated lawsuit against the food suppliers of his grocery store in St. John's.Greg Locke/The Globe and Mail
When a simple lawsuit over a wholesale price arrangement becomes a generational battle, the nature of Canada’s civil-justice system becomes clear: you can have as much process as your money can buy, over a lifetime, if necessary. And a lifetime might well be necessary.
Canada’s civil-justice system is breaking down, mired in procedures that no longer make sense, according to the Supreme Court of Canada. The search for justice has become a nightmare of legal skirmishing, with runaway costs, financial and emotional, beyond the vast majority’s ability to bear.
Even the system’s leaders, the chief justices, describe it in harsh terms.
“Unbearable” is the word that Quebec Superior Court Chief Justice Marie-Anne Paquette used in an interview with The Globe and Mail to describe the civil courts in her province. She mentioned families in crisis forced to wait two years for a hearing on custody or support issues, and employees seeking damages over constructive dismissal enduring similar delays. “People of course deserve an efficient criminal justice system,” she said, “but they also deserve an efficient and affordable civil justice system, which is just as essential to a democratic society bound by the rule of law.”
Delays in civil justice are 'unbearable' in Quebec, says Marie-Anne Paquette, Chief Justice of the province's Superior Court.Nasuna Stuart-Ulin/The Globe and Mail
This year marks 10 years since the Supreme Court of Canada said in a landmark ruling known as Hryniak v Mauldin that the civil-justice system had lost touch with modern reality.
The court made the very point that would ultimately be illustrated in Walsh v TRA: Canada’s civil-justice system has too much legal process, and too little justice.
The conventional trial, the court said, had become “illusory” because it took so long and cost so much to get there that few could afford it. The court called on the legal community to adopt an urgent culture change, one that would allow for simpler procedures.
Civil justice receives far less publicity than criminal justice, even though it is the place where many Canadians encounter the justice system.
It’s where divorcing couples seek help when they can’t work out support or custody issues. It’s where sexual-assault victims sue their perpetrators, or the institutions that enabled them. It’s where businesses sort out contractual disputes. It’s where individuals turn when harmed by faulty products or government negligence. They are seeking compensation, and a repairing of the wrong, to move on with their lives.
But the World Justice Project, an independent advocacy group, ranked Canada 24th last year for its civil-justice system. On unreasonable delay, it ranked 58th, and on access and affordability, 64th. When the Supreme Court issued its wake-up call in 2014, civil justice was ranked 13th. (The criminal-justice system is said to be in better shape, ranking 12th in 2023.)
The Globe surveyed chief justices in each province and interviewed more than 30 lawyers, judges and litigants to determine how a civil suit moves through the system and how long that usually takes. Many use as a starting point the date that the parties affirm they are ready to go to trial. In Montreal, booking a five-day trial takes 25 months from this point. In British Columbia, where trials can be requested earlier in the process, the figure is nine months till trial.
While the courts do not track how long it takes from the time a legal complaint is filed until a trial begins, they have a good idea of what litigants should expect. “All too often,” Ontario’s Superior Court Chief Justice Geoffrey Morawetz said in a speech, that wait is four to five years.
The result: “The Court runs the risk of becoming irrelevant in civil proceedings if action is not taken,” the Office of Chief Justice Morawetz said in its response to The Globe’s survey.
If the problem of process swamping justice were not severe enough, the federal government has left scores of judicial vacancies unfilled. And new time limits on criminal proceedings established in 2016 have had the unintended effect of draining the civil system’s resources because judges often carry criminal and civil caseloads and the criminal cases are treated as the priority.
Yet new approaches are available. Other jurisdictions do not treat prolonged legal skirmishing as an inevitability. Some are doing things Canada has barely begun to try – setting trial dates early, putting judges in the driver’s seat, narrowing the issues promptly, keeping side battles to a minimum.
The question is whether the people who oversee the justice system are willing to make big changes.
Cases getting ‘bumped’
The latest sign of a system in breakdown: trial dates, reached after an onerous, years-long process, are becoming meaningless in more and more cases.
Shari Leahy of Ottawa sued a driver in the summer of 2020 after being struck by a car at a crosswalk, suffering what she describes as life-changing harm to her knee, neck and mental health. After nearly four years, her lawsuit seeking compensation was set for a six-week jury trial, starting this past April. But on the Friday before, she was informed the trial was postponed indefinitely. There was no judge available. Her case was put on a list of other postponed cases in the nation’s capital, to be reviewed next October – with no guarantee even then of a trial.
“My heart sunk right down to my shoes,” Ms. Leahy said in an interview. “It was devastating.”
She’d been “bumped” – an experience so common today it has entered the legal lexicon.
In B.C., 35 per cent of civil trials in Victoria, 26 per cent in New Westminster and 17 per cent in Vancouver were bumped last year, as recorded in the B.C. Supreme Court’s annual report. Chief Justice Christopher Hinkson, now retired, said unfilled vacancies (11 on an 82-member court at the end of 2023) are to blame.
“It’s not unusual for somebody to fly into town to Vancouver to bring their clients in, to bring out-of-town witnesses in, ready for a five-day trial. Everyone’s here to start because once you get going it’s like a production, you have to have people ready to go in the next hour – and there’s no judge,” says lawyer Craig Ferris, a former president of the B.C. Law Society.
When lawyers, their clients and witnesses travel from out of town to venues such as the Vancouver Law Courts, they may find no judge and no forum to be heard.Darryl Dyck/The Canadian Press
The costs of such last-minute cancellations are enormous: trial prep needs to be done over again; expert witnesses need to be paid for their time; memories fade; and the emotional strain is immense.
Lawyers now find it tricky to advise clients on whether to take a settlement offer, knowing that if they don’t take it they may end up with no trial date, says Brenda Hollingsworth, a lawyer for Ms. Leahy. Ms. Hollingsworth had two trials scheduled early this year in Ottawa – and both were cancelled on the Friday before because no judge was available.
“We’re embarrassed for the system,” Ms. Hollingsworth said.
Defendants may benefit from delays, because litigants exhausted by the system may settle for less.
Consider sexual-abuse survivors entering mediation two to three years into the civil process. The defendant will often make an offer on the low end of what a jury or judge might order, lawyer Simona Jellinek of Toronto says. The survivors may be struggling on low incomes and need the money to live on. And Ms. Jellinek has to tell them it will be two more years to reach trial.
“Defendants use this [delay] to pay less money,” she says. “That’s unfair. There’s no way that it should take two years to get to a trial.”
Today, lawyers such as Erin Durant of Ottawa say they are increasingly telling clients they should give serious thought to the delay, the cost and the mental toll before deciding whether they want to go ahead.
“It’s really the average citizen, the average small business that gets hurt the most from this. They don’t really have an alternative,” she says, adding that wealthier people can choose the expensive but faster process of arbitration.
Bringing a lawsuit to a judge and jury can be a time-consuming process, and some lawyers are increasingly telling clients that the wait may not be worth it.Jason Franson/The Canadian Press
Toronto lawyer David Sterns says a lawsuit is probably not worth the frustrations and cost unless the claim is $500,000 or more.
“If you can’t get a court to decide a matter within, if it’s urgent, six months, and if it’s not urgent, two years, do you even have a justice system?” says Mr. Sterns, a former president of the Ontario Bar Association who chaired its working group on civil justice reform.
Delayed and bumped trial dates are frequently the result of a judge not being available to hear the case.
At its worst, in the spring of 2023, the federal government had left 88 vacancies on the courts, some unfilled for longer than a year, among just under 1,000 full-time positions on the federally appointed courts, which include the civil, criminal and appeal courts of the provinces.
Chief Justice Paquette said she does not understand the reason for the delay in appointments, since judicial retirements are known months or even years in advance.
Since February, when a Federal Court judge declared the government in breach of its constitutional duty, Ottawa has reduced the vacancies to 54, as of July 23. Justice Minister Arif Virani defended the Liberals’ record, characterizing the pace of appointments as faster than that of any other government.
Chief Justice Richard Wagner – shown on screen in 2021, welcoming new colleague Mahmud Jamal to the Supreme Court of Canada – is pressing the Trudeau government to fill judicial vacancies across Canada.Adrian Wyld/The Canadian Press
Chief Justice Richard Wagner of the Supreme Court of Canada has expressed in powerful terms his concern about the state of civil justice, and the need to fill vacancies promptly.
“The necessary urgency in processing criminal cases means the courts’ role in civil cases is being neglected,” he said in a letter last year to Prime Minister Justin Trudeau, pleading for him to take urgent action on judicial vacancies. (The full text of the letter became part of the public record in a legal case on appointments this year.)
“The justice system is consequently at risk of being perceived as useless for civil matters.”
The vacancies leave a heavy workload for the judges in place, prompting many to seek medical leave, Chief Justice Wagner said in the letter. Those that remain find it difficult to attend training sessions, even mandatory ones.
Compounding the problem: court staff such as clerks and court reporters are leaving in large numbers for better-paying work, often in other government offices. Chief Justice Paquette referred to it as an “exodus” of support staff, and said judges are increasingly doing clerical work, at the expense of their legal work.
“We would be horrified to hear that a surgeon, in addition to performing surgeries, is required to devote time and effort to build the schedule of surgeries, to book the patients, to prepare the operation room and to clean it after the surgery is performed,” Chief Justice Paquette said.
She added that other factors, too, have a direct impact on delay, including the growing complexity of the law and a rise in self-represented – she called them unrepresented – litigants.
But Mr. Sterns said appointing more judges is just one part of the answer; without improvements to the process, the extra capacity would be quickly used up.
“At some point it’s like building more highways,” Mr. Sterns says. “It encourages more cars.”
The culture, he said, needs a drastic overhaul.
The core cultural problem
In Canada, civil litigants and their lawyers decide how and when a case should proceed. It is known as a “party-driven” system and it breeds delay.
“In almost all civil litigation, one party cares more about delay than the other party,” says Geoffrey Cowper, a senior Vancouver lawyer and a keen observer of delay in both the criminal and civil systems. “So then, the incentives are in place to use whatever procedural methods are available to delay.”
The picture looks different in the U.S. federal system of 94 district courts. Judges manage the cases. They meet with counsel in their chambers to supervise case preparation, set deadlines and resolve issues that could wind up in time-consuming motions.
“The only systems that run efficiently are systems where the court takes an active role in promoting time limits,” Mr. Cowper said.
In the U.S. District Court in the Eastern District of Virginia, known as the Rocket Docket, it takes a median time of just 11.2 months from the beginning of the process – the filing of a civil complaint – until trial.
“If you have a judiciary that is committed to it, no case is too complex to be resolved efficiently and quickly,” says Sterling Marchand, who chairs the litigation department of Baker Botts, a global law firm with headquarters in Houston and who has practised in the Rocket Docket.
Within three to four months of a lawsuit being filed in that district, the court must issue a scheduling order. It sets out most deadlines, including a final pretrial conference, and sometimes the trial date. Discovery – the questioning of the people involved in a case, outside of court – starts right away. If the defendant puts forward a motion to dismiss the case, a judge hears the motion without delaying other matters; discovery continues as scheduled. Most motions are heard within a week or 10 days and judges usually rule on motions that day, from the bench, rather than leave the parties to wait months for a written opinion.
Discovery is typically completed within 90 to 120 days. “That is an extraordinary feat,” says Mr. Marchand, who practises all over the U.S. “It is really unusual to say, ‘It doesn’t matter if you’re a big case or a small case, we’re going to do all the discovery that’s necessary in 120 days.’ ”
The rules say continuances (or adjournments) are rarely to be granted, even if both sides want one.
“It doesn’t matter if you show up and say, ‘Judge, there’s a million documents at issue, we need another six months.’ The judge is going to go, ‘I don’t care, figure it out. Figure out what the critical documents are and get there. You have two months. Go.”
At a recent antitrust hearing against Google, people line up at the Albert V. Bryan courthouse in Alexandria, Va., home of the district court for eastern Virginia. Known as the Rocket Docket, this court system is renowned for its fast turnaround in civil cases.Bonnie Cash/Getty Images
Canada’s motions culture
In Canada, efforts to provide parties with a fair process have enabled years-long fights about the process itself, an expensive diversion from the issues at hand.
After a claim is filed, the defence files a response and then the case moves to discovery. No judge is present. When participants understand the case better, they reach more informed and fairer settlements – most cases settle before trial.
In Ontario and several other jurisdictions, trial dates are not set until years into the process – a period in which tussles may erupt over anything and everything. Either side may bring a motion (a request to a judge to do something) and argue it out, in writing and, often, in an oral hearing.
Civil justice in Canada, says Mr. Sterns, suffers from a “motions culture” – both sides fighting, for instance, over what should go in an affidavit, or whether someone should post “security for costs” (the loser usually has to pay the winner’s legal and court costs), or whether someone should answer a particular question in discovery.
“It’s anything that doesn’t involve the substance of the matter,” he says. “As lawyers, we love it. We love procedure. It’s almost a fetish. It’s what we think separates us from the common man.”
Motions may add years to the process. But even when discovery is completed, participants may have another long wait, up to two years or more in parts of Ontario, to reach a pretrial conference with a judge and mediation. The mediation, in some cases mandatory, can be done by a judge or a person outside of the justice system.
It is a vital step; cases are often settled through mediation.
“Sometimes clients need a judge to say, ‘Hold on, Mrs. X, I know you think you’re going to get $500,000, but in my world, having heard many of these cases, you’re only going to get $150,000,’ ” says lawyer Lisa Belcourt, whose practice includes the Barrie, North Bay and Sudbury areas of Ontario. “And likewise, on the defendant side, it’s often helpful for an insurance company to hear what a judge has to say.”
If trial dates were set at the beginning of the process, and people knew they had a trial date two years after the complaint and defence were filed, Mr. Sterns said, they would try to avoid the distractions and instead focus on the task at hand.
“All this wasted time would probably go away.”
Alberta announced a pilot project in late April to allow some cases to set trial dates early in the process, before all pretrial steps are complete.
It’s a step toward a rocket docket, Mr. Sterns said.
Chief Justice Paquette argues that Canada could use a civil-law version of the Jordan ruling, a Supreme Court of canada decision that firmed up limits for criminal cases.Nasuna Stuart-Ulin/The Globe and Mail
In need of a civil Jordan
The Supreme Court’s epochal ruling on criminal-justice delay, called Jordan, was about a drug prosecution that lasted more than four years. The Jordan ruling galvanized the legal system because it established that even murder or rape cases could be thrown out if they went beyond newly created time limits.
That ruling was possible because a person accused of a crime has a right to timely justice, under the Charter of Rights and Freedoms.
But the Charter has no comparable right for a plaintiff – the individual or group that brings a lawsuit. So when the civil system had its seminal moment on delay – in the 2014 Supreme Court ruling, Hryniak v Mauldin – the system remained largely in stasis, though with some differences among the provinces. The shift was supposed to have been toward more flexible procedures, with less of a need for a full-blown trial.
“I do not think that we have achieved the culture shift referred to in Hryniak v. Mauldin,” Deborah Smith, Chief Justice of the Nova Scotia Supreme Court, said in her written answers to The Globe’s survey. “The practice of law does not change quickly. Litigation is steeped in tradition.”
Criminal cases usually take priority (family and child-protection cases are also treated as a priority). Criminal-court sitting days on Quebec’s Superior Court rose from 1,542 days in 2015-16 to 2,003 days today, at the expense of civil court, Chief Justice Paquette said.
“Maybe we need a civil Jordan – the situation is untenable,” Chief Justice Paquette said, suggesting that only a constitutional requirement for speedy justice in civil cases can spur the type of dramatic change the system needs.
Even when the Supreme Court in Hryniak urged greater use of a simpler procedure called a summary judgment motion, the idea ran aground. A summary judgment motion is sometimes called a “trial in a box:” judges decide the outcome of a case based mostly on a paper record, plus a half day of legal arguments, rather than a full-blown trial.
But the “box” grew so big the judges couldn’t cope. Faced with perhaps 5,000 pages to read – in case after case – judges in Ontario threw up their hands, Mr. Sterns said, and decided it would be easier to listen to witnesses for a week and decide the matter.
The judges in Canada are largely on their own. Not so in the U.S. federal system.
Canadians might be familiar with the U.S. district court system through the myriad civil cases against Donald Trump, like the one Judge Lewis Kaplan presided over in New York last year. Even in less high-profile cases, American judges have a more far-reaching network of staff to help them than their counterparts in Canada.Elizabeth Williams via AP
How the U.S. supports federal judges
Every six months the pressure builds on District Court Judge Terrence Berg of the Eastern District of Michigan. That’s when a federal agency posts for all to see a new list of all motions pending (undecided) for more than six months – for each judge, by name. Canada has no such transparency for its judges. Although there is no tangible penalty, judges in Michigan try to avoid being shown as slow. Cases unresolved after three years go on a separate list.
“It creates a crunch every six months,” Judge Berg said in an interview. “Just as with everything – the nature of work, people putting things off – if you let that happen, you’re going to be in a position where you’re working extra hard at the end.”
But the U.S. federal system also supports its judges unlike anything done in Canada. Like most federal judges, Judge Berg has three law clerks and a case manager.
The law clerks – top young lawyers – do research, write proposed orders and “help the court to understand the law,” Judge Berg says. They also read the voluminous records, sometimes amounting to thousands of pages.
“It’s just not possible for one judge to read all this stuff,” he says. The law clerks, he says, tell him: “’This is the part you should really read, pay attention to this, don’t miss that.’
“They’re absolutely essential,” Judge Berg said.
Meanwhile, the case manager stays in contact with the lawyers for each side and helps set dates for hearings.
By contrast, only Supreme Court of Canada judges have three law clerks each. In Quebec, 11 full-time judges share a single law clerk. In B.C., one judicial law clerk is shared by four to seven full-time and semi-retired judges. In Ontario, 278 full-time and semi-retired judges share 27 law clerks. Judges do not have their own case manager.
“It’s hard to talk about a culture problem without also talking about how we are going to provide our judges with the resources they need to do their jobs – especially if we’re going to demand more of them,” says Toronto lawyer Chanakya Sethi, who has been a law clerk to a judge and practised law south of the border.
In 2016, the American College of Trial Lawyers urged this country’s courts to adopt an approach used for decades on the U.S. federal courts: one judge handles the case from the time it is filed, through the pretrial process, and to the end of the trial process. The idea is that the judge becomes familiar with the issues, keeps the parties on track and provides continuity. The lone judge, not the litigants, is responsible for managing the case and ensuring it moves efficiently along.
Inspired by that report, Manitoba’s Court of King’s Bench has been using the one-judge approach since 2018; Chief Justice Glenn Joyal says it has cut delay and cost.
New Brunswick’s Court of King’s Bench Chief Justice Tracey DeWare says her court is making a concerted effort to increase the use of case management and settlement conferences earlier in the process – a culture shift, she said. But others, such as the courts of B.C. and Quebec, say it is impractical at this time. Allowing other judges to hear pretrial motions gives the system flexibility.
“Adopting a one-judge-per-case approach would require hundreds more judges to maintain our efficiency, given the tens of thousands of cases at the Superior Court and fewer than 200 judges available,” Chief Justice Paquette said.
Mr. Walsh still feels the lawsuit against his food suppliers ended unjustly.Greg Locke/The Globe and Mail
Big change
The judge who conducted the Walsh trial called Mr. Walsh “a persistent and strong-willed gentleman,” implicitly making the same point as Mr. Cowper, that the litigant had driven the process. That judge, Newfoundland and Labrador Supreme Court Justice Glen Noel, made an unusual declaration in his 2022 ruling that he felt sympathy for Mr. Walsh and his wife, Lenora, adding: " I searched long and hard to find a path for the Walshes to succeed.” But neither the law nor the evidence allowed for such a path, he wrote.
Mr. Walsh’s response: “That poor judge, he was hook, line and sinker.”
Mr. Dicks, his lawyer, did not respond to requests for comment and a lawyer for the victorious side declined to comment.
Mr. Walsh is a former amateur boxer, but said he had never been hit as hard in the ring as he was by the legal system. Devastatingly, his son Bradley died of brain cancer as the six-week trial neared its end in 2021. Mr. Walsh recalled his son’s words the night before he died: “Dad, don’t give in.”
And Mr. Walsh says: “I’m not giving in, I can tell you that.” He says the result in his case was wrong and unjust.
Last year, Ontario Court of Appeal Justice David Brown issued a public challenge for a redesigned civil process – for claims under $500,000 – that would go from start to finish in court within 18 months. It would not require legal fees of more than 10 per cent of the claim’s value. It would be simple enough for reasonably educated litigants to represent themselves, on an equal footing with lawyers. Critically, the design team would have as many process engineers, computer system designers and business process experts as lawyers and judges.
A spokesman for Justice Brown said he is not aware of anyone taking up the challenge.
Quebec is reaching beyond lawyers for answers. The province’s Superior Court has brought in systems experts from HEC Montreal, a business school, for a two-year operational study. Ontario is sticking with judges, lawyers and a law professor for a two-year review of civil-justice rules, organized by Chief Justice Morawetz and the province’s Attorney-General.
Some lawyers and judges say it is time to go back to rebuild the system from scratch.
Toronto lawyer Jeffrey Leon, a former president of the American College of Trial Lawyers, said: “Unless we have big change, we’re just tinkering with the existing system.”
Adrian Wyld/The Canadian Press
How to fix the system
The Globe surveyed chief justices in each province and interviewed more than 30 lawyers, judges and litigants for this story. Here are seven recommendations they put forward on how to reduce delays in civil trials.
- Set trial dates early in the process.
- Carve them in stone, as Justice David Brown has written.
- Implement a one-judge, case-managed model where possible to help narrow issues early and avoid the side battles.
- Allow oral hearings on motions only with a judge’s permission.
- Give each judge a law clerk of their own.
- Start an online dispute resolution service for small cases (B.C. has such a service), with no lawyer involvement and no hearings.
- Fill vacancies on the bench on the day that judges retire.
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