The Ontario civil justice system is plagued by inefficiencies and delays, forcing litigants to live with results that are only “fair enough” rather than fair, says Toronto civil litigator Patricia Virc.
“The civil justice system is essentially broken,” says Virc, a lawyer with Steinberg Title Hope & Israel LLP. “It does not work. It is not a great tool for ensuring that people behave well.”
The system is particularly oppressive for plaintiffs trying to move their cases forward, says Virc, who does substantial plaintiff work.
Even a massively well-resourced litigant like the Canada Revenue Agency (CRA) appears to have a problem making progress, she notes, citing a recent CBC News report on the federal agency’s battle with big accounting firm KPMG.
According to the CBC, the CRA is facing years of delay in its civil action against KPMG over an alleged tax dodge for well-heeled Canadians in the Isle of Man.
As long ago as February 2013, a judge ordered KPMG to hand over to the CRA the names of wealthy clients using the offshore tax shelter, CBC reports. KPMG fought the order, and the appeal was finally scheduled to be heard in January 2017, more than four years later, according to the report.
Systemic delays likely played a role in tying up the KPMG case, says Virc.
In the average civil case, litigants wait six months after perfecting their appeal to have their case heard at the Court of Appeal for Ontario, she tells AdvocateDaily.com.
Virc cites Ontario Superior Court Justice David Brown’s remarks to the Carleton County Law Association in 2014, in which he said: “Our court needs to assure the public that if they seek our assistance to deal with a civil dispute, the process will be completed within a reasonable period of time and at a reasonable cost. If we cannot provide such an assurance, we risk losing our legitimacy as an effective part of our democratic governance system.”
For the ordinary citizen, the challenges of navigating the legal landscape are even greater than for the wealthy and powerful, creating a two-tier system, she says.
Virc cites the average person’s limited access to court triage, an effective method of streamlining cases to make them more efficient and affordable.
Only high-value civil matters such as those on the Commercial List are generally case-managed and triaged. Meanwhile, ordinary civil litigants with low-value matters have no access to this process.
Faced with insurmountable costs, people of modest means are increasingly choosing to represent themselves.
Former Ontario chief justice Warren Winkler has said that in some Toronto family courts 70 per cent of people are reported to be self-represented. Their numbers are soaring in the civil law list too, Virc says.
Meanwhile, the affluent are opting out of the public system by purchasing expensive private arbitration or mediation.
Virc believes this has negative implications for the jurisprudence because privately arbitrated cases are being decided without the benefit of a public hearing, and we are being deprived of the judicial reasons that would otherwise follow.
On the other hand, cases of public interest launched by self-represented litigants are being decided without the benefit of informed legal arguments, the lawyer says. “They won’t be taken to an appellate level for the guidance and benefit of everyone in the country.”
While more people represent themselves in court, increasing numbers of lawyers are under-employed, Virc says. “We have too many lawyers chasing too few files.”
Another important development, she says, is that the system has failed to keep up with technology and its attendant explosion of electronic filings. Documents produced today are far more numerous than in the paper era.
“Even the smallest file has thousands of documents,” Virc says. “So now, as civil litigators, we become forensic document examiners.”
Instead of appearing in court, civil lawyers are increasingly sitting in their offices poring over electronic documents to find the “needle in the haystack” that may undermine their opponent’s position, she says.
“It’s a completely different practice. It’s oppressive.”
Because it’s too expensive to go through all the mountains of documents, lawyers have to apply principles of proportionality in assessing which ones to examine. But the problem is you don’t know whether a document is important until you have read it, she says.
As Justice Brown said in 2014, “E-discovery risks killing civil litigation by pricing civil suits out of the reach of all but the rich.”
The system has not improved over the years, Virc says.
When she took parental leave from her practice in 2001, there was much talk about reducing delays and soaring costs, about the need to improve motions practice and the fact that trials were vanishing. When she returned eight years later, little had changed, she says. “It’s worse, other than the fact that mediation/arbitration is much better developed and more popular.”
The system will have to change, but it won’t likely be anytime soon, Virc says. It would require the government to apply many more resources and a complete streamlining of the administration, she says.
Virc cites the example of settlement conference briefs in a family law case she was involved in. Such briefs are mandatory. But when the case came before a judge, it turned out that the court had lost the briefs and the case went directly to pre-trial.
The lost briefs, which were required by the Rules, cost both parties thousands of dollars, she says. “It was useless. It was a systemic error. And from the client perspective, the civil justice system looks like a joke.”
It’s no wonder there are so many self-represented litigants, she says. “They don’t see lawyers as helpful or as their allies.”