The problem of delays in civil litigation threatens the essence of justice.
The situation with delays in Canada’s civil courts is reaching a critical point, turning the old phrase "justice delayed is justice denied" into a harsh reality.
According to the 2023 World Justice Project Rule of Law Index, Canada scored 0.46 on the criterion of "no undue delays," which is below the global average and highlights the scale of the issue.
Lawyers and experts emphasize that such delays erode trust in the justice system and call into question its functionality. Ian Matthews, a Toronto lawyer, claims that the system is "practically collapsing under its own weight." Multi-year delays render lawsuits meaningless: a decision that arrives too late holds no value for the affected party.
This is particularly acute in commercial disputes. Companies trying to recover debts or defend their rights are forced to wait for years.
As a result:
- Small businesses may go bankrupt before receiving a fair resolution.
- Companies accept unfavorable settlements, preferring half or less of what they are owed to avoid endless legal battles.
- Canada risks losing investment appeal, as entrepreneurs avoid jurisdictions where disputes are not resolved promptly.
Matthews notes that delays also encourage companies to evade obligations, knowing their opponents cannot achieve timely justice. "If someone owes you $100,000, you’ll likely settle for $40,000–50,000 just because you don’t want to wait five years," he added.
Gillian Dingle, a lawyer at Torys LLP, provides specific examples:
- In Toronto, even with a commercial court docket, a simple two-hour procedure may be scheduled eight months out.
- More complex cases or trials take a year or longer to reach court.
She highlights that such delays add stress to clients: witnesses forget key details, and litigation costs steadily rise.
One reason is the chronic shortage of judges and staff. Dingle recounts a case where hearings were delayed nearly three years due to a lack of judges. Even when resources are available, more urgent cases, such as criminal and family matters, push civil cases further back.
Furthermore, Moira Graham of McCarthy Tétrault points to a systemic issue: courts operate at maximum capacity, and outdated procedures exacerbate delays. Hearings are often canceled and rescheduled due to resource shortages, prolonging cases.
Jesse Harper from Fasken Martineau DuMoulin LLP highlights a troubling tactic: in civil cases, delays are used as a strategic tool. One party benefits from dragging out the process, hoping the other side will run out of financial or emotional resources.
Experts agree that a comprehensive overhaul of civil litigation rules is essential. Harper emphasizes that outdated procedures, designed "for a completely different era," must be replaced with modern methods, such as:
- Implementing technology for virtual hearings and streamlining processes.
- Differentiating approaches for various case types to improve efficiency, as already adopted elsewhere.
Justice that comes too late is worse than justice denied.
The state of the justice system resembles issues in healthcare: when treatment is delayed, it becomes ineffective. Similarly, decisions rendered years later lose their meaning and leave victims unprotected. As Matthews noted, if a country upholds the rule of law, its justice system must function timely and for everyone. If it doesn’t, justice becomes an illusion, and the system itself becomes unsustainable.
Oleksandra Melnykova, Immigration and Refugee Consultant in Canada.
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