Toronto civil litigator Patrick Summers says The Advocates’ Society Best Practices for Civil Trials, released recently, provides well-meaning and important recommendations to streamline the trials process, but does little to address the overall cost of bringing a matter forward and the growing access-to-justice issue that exists in the justice system.
“These best practice points appear to me to be more about scarce judicial resources for civil trials than about access to justice,” he says.
The Advocates’ Society notes in its best practices, laid out in a 17-page document, that the length and cost of civil trials is a significant problem in Ontario and points to Chief Justice George R. Strathy’s remarks at the Opening of the Courts Ceremony on Sept. 9, 2014: “It strikes me that we have built a legal system that has become increasingly burdened by its own procedures, reaching a point that we have begun to impede the very justice we are striving to protect.” The Chief Justice said the “justice system has become so cumbersome and expensive that it is inaccessible to many of our own citizens.”
The Advocates’ Society says that “excessively long trials consume scarce judicial resources to the point that timely access to the courts is compromised” and that civil trials “pose a serious threat to access to justice in Ontario.”
It was within this context that The Advocates’ Society struck a task force in early 2014 comprised of civil litigators and judges to examine the issues more closely. The Society also hosted a Civil Trials Symposium in January of this year when more than 100 judges, lawyers and leading legal academics shared their views on how to ensure the fair and timely resolution of civil disputes through the court system. Those views are reflected in the Society’s Best Practices for Civil Trials.
The best practices — there are 16 in total — are grouped into four different areas including: case management; trial planning and management; use of documents and technology at trail; and evidence at trial.
Summers, partner with Birenbaum Steinberg Landau Savin & Colraine, says the Society’s suggestions are mostly good. As examples, it’s certainly good for counsel to co-operate with one another, as well as for a case management judge to be in charge of all of the motions and procedures all the way to trial.
The problem, Summers says, is that making trials more streamlined does nothing to address the overall access-to-justice issue because it simply shifts the cost of litigation to the preparation part of the legal process.
“For example, there are all sorts of best practices listed — such as getting experts lined up well in advance of trial, trying to get an admission of the facts sorted out with the opposing side before trial, and creating a discovery plan at the beginning of the action — all those are great things in a perfect world, but doing those well before trial only moves the cost of a speedy trial onto the preparation of that speedy trial,” he says. “So it doesn’t really help the overall concern about access to justice as far as I’m concerned.”
Summers says implementing all of these best practices for civil trials can make it more expensive for the average litigant to have his or her day in court.
“These best practices are more geared towards streamlining trials in an effort to deal with scarce judicial resources rather than making it more cost-effective for the litigant themselves,” he says. “It may be a different story for large corporations but the average litigant doesn’t have the money to front all of the costs, such as lining up all experts, early on in the process.”