Michael Wilson is a former chief of staff to the Ontario attorney-general and a partner at Goodmans LLP. Preston Lim is an assistant professor at the Villanova University Charles Widger School of Law.
Ontario’s civil justice system is arcane, expensive, and plagued by delay – and in short, as The Globe and Mail reported, it is in crisis. Even well-funded, sophisticated litigants involved in high-stakes disputes in Canada’s most populous province are eschewing its courts and engaging in private arbitration instead. The consequences are serious: increasingly, only a small fraction of organizations and individuals are able to make use of the system, leaving many Ontarians without legal recourse, or forcing them to take matters into their own hands.
Critics have said that chronic underfunding lies at the root of the problem. But while a broader restructuring of the civil justice system and significant investment would certainly be welcome, such investment is unlikely given the financial challenges that the province and country face. Last we checked, there is no money tree growing in Queen’s Park.
Faced with that reality, then, we should look to a few low-cost but high-impact measures to combat the current crisis facing the civil justice system.
First, the province should further simplify legal procedures around smaller, low-value claims. To do so, Ontario should create a Civil Resolution Tribunal to handle cases worth up to $25,000. Legislators could model Ontario’s off of British Columbia’s pioneering Civil Resolution Tribunal, which operates fully online and usually does not require the involvement of lawyers. In addition, the province should expand the jurisdiction and alter the operations of the Ontario Small Claims Court, which currently provides cost-effective justice for claims up to and including $35,000. Given the Court’s success and the relative ease with which it can be navigated, the province should increase its monetary jurisdiction to $70,000. The Small Claims Court should also operate entirely virtually, which would further reduce litigation costs, particularly for Ontario residents who live outside urban centres.
Both the proposed Ontario Civil Resolution Tribunal and the Small Claims Court should incorporate evaluative mediation, whereby mediators make recommendations for the parties to follow. If a party chooses to ignore the mediator’s recommendation, proceeds to trial, and achieves a result that is less favourable than the mediator’s assessment, they should suffer adverse cost consequences.
Second, the Ontario Rules of Civil Procedure currently provide for a “simplified procedure” where up to $200,000 is at stake. This attenuated process has proven a success, since it allows for procedures commensurate with the amount at stake. The government should build on the success of the simplified procedure regime and introduce further rule changes, including having the simplified procedure apply to claims worth up to $500,000, and incorporating mandatory evaluative mediation to dissuade recourse to full trial. Interlocutory motions – applications for a court to decide an issue that will not result in a final judgment of the case – can lead to unnecessary expense and delay; in Toronto today, motions that require more than two hours of argument usually take more than one year to be scheduled. We recommend that interlocutory motions proceed in writing by default, with a judge retaining the discretion to order an oral hearing. Active case management, which involves the judge proactively setting deadlines and crafting unique procedures, should also be mandatory for full trials.
Third, there should be reforms to how litigants make appeals. Appeals to the Court of Appeal for Ontario are vital, because they allow that Court to develop the common law and provide guidance to lower courts. Yet litigants too often misuse the appeals process to delay the payment of amounts owing. Introducing a leave requirement, like the one that exists at the Supreme Court of Canada, would mean that litigants would have to obtain permission from the Court of Appeal to appeal a lower court’s judgment. A leave requirement would give the Court of Appeal greater control over its own docket and clear out unmeritorious appeals. To further discourage appeals filed merely for the purposes of delay, we recommend mirroring American legislation and ending the practice of automatic pauses of monetary judgments upon appeal – in other words, requiring appellants to bring a motion in writing if they wish to prevent the execution of a monetary judgment. Judges should also be able to order a party who wishes to avoid payment of the amount owing, pending appeal, to post security for the judgment.
A healthy, well-functioning civil justice system benefits the public good by enhancing economic certainty and providing a forum for the peaceful resolution of disputes. In the likely absence of a significant infusion of new funding, these reforms would reduce costs to litigants, lighten the burden on courts, and rejuvenate Ontario’s civil justice system – and those benefits would certainly pay for themselves.