No one really wants to go to court to handle their problems, but going to court can be unavoidable. Cases not involving criminal or family law fall into the “general civil law” category. During the 2022-2023 fiscal year, Canadian courts had 768,615 active general civil law cases, with nearly half of those cases being initiated that year. While general civil law cases don’t usually warrant the expediency required by criminal and family law cases, they are still very important to the people who bring them. These are cases that deal with, among other things, employment disputes, injuries caused by the actions of another, bankruptcy, constitutional/Charter challenges, and the administration of the estates of deceased persons. Current judicial delays in the civil justice system significantly impact the people who need to bring these cases.

The extent of delays is exemplified by how difficult it can be to schedule a motion for civil cases, keeping in mind that any given case can require numerous motions. Using the scheduling system lawyers are instructed to use by the Court’s regional practice directions, the table below shows how few dates are available for scheduling in the Toronto region. It is also important to note that this table only considers the availability of the court, let alone the scheduling conflicts between parties and counsel.

Toronto Region Motion Scheduling Availability November 30, 2024 - July 30, 2025*
Type of Hearing	Mode of Proceeding	# of Available Dates
Civil Case Conference with a Judge	Virtual	53 Dates
Assoc. Judges Motion (75min or less)	In Person	11 Dates
Assoc. Judges Motion (75min or less)	Virtual	30 Dates
Assoc. Judges Motion (90-120min)	In Person	34 Dates
Assoc. Judges Motion (90-120min)	Virtual	18 Dates
Express Court (15min or less)	Virtual	15 Dates
Removal of Solicitor	Virtual	19 Dates
* These dates include 145 business days (excludes weekends and statutory holidays)

What’s the hold-up?

In 2016, in the case of R v Jordan, the Supreme Court of Canada recognized that criminal defendants were waiting far too long to have their cases resolved. The Court determined that to prevent defendants from waiting unacceptable amounts of time, there would be a presumptive ceiling on how long they have to wait. After waiting for trial for 18 months at the provincial court or 30 months at the superior court, a defendant’s case will be stayed unless the Crown can show the delay was caused by exceptional circumstances. Jordan has been lauded for compelling expediency in criminal law cases. It has also pushed prosecutors and judges to think prudently about which criminal cases to pursue. Is it worth prosecuting a small value shoplifting if that means someone charged with a violent crime has their case stayed? In this way, Jordan has brought some important questions to those with prosecutorial discretion.

However, Jordan has had a negative impact on the civil justice system. In Ontario, Superior Court judges do not specialize in criminal or civil cases. This means that when Jordan was decided, and judges' focus was shifted to dealing with criminal cases as expediently as possible, civil cases were sacrificed. To learn more about what contributes to the delays in the civil justice system, I spoke with Suzanne Chiodo, a professor at Osgoode Hall Law School and an expert in civil procedure and access to justice. Professor Chiodo is also currently a member of  Ontario's Civil Rules Review Working Group and is researching causes of delay in Ontario.

Exacerbating Factors

Professor Chiodo and I first talked about the lack of judicial resources, as it has recently been the most complained about cause for delays. Earlier this year, in the case of Hameed v. Canada, a federal court issued an order to the federal government (namely Prime Minister Justin Trudeau and the Minister of Justice) to appoint more judges. The order was premised on the constitutional authority and responsibility of the federal government to appoint judges and the dangers posed by the significant number of vacancies in courts across the country. As Chief Justice Wagner of the Supreme Court noted in his letter urging the Prime Minister to make more appointments, fewer judges mean fewer cases can be heard, and decisions are released more slowly slower because “judges need to spend more time sitting instead of deliberating.”

Judges are not the only judicial resource that courts lack. Many courts are short on staff necessary for the system's functioning. This has led to many courtrooms being closed over the last few years, further delaying the hearing of cases. The issue of insufficient staff is exacerbated by the anachronistic way the court operates. When I asked Professor Chiodo if Zoom Court has helped alleviate these problems, she said no. Zoom saves the parties and lawyers a bit of travel and waiting time, but using the same old procedures saves no other time.

Professor Chiodo says the biggest culprits for the delays in the system are actually the lawyers. The adversarial culture in the legal profession leads to lawyers (often unnecessarily) fighting tooth and nail at every step, even if it doesn’t directly further their case. For example, instead of agreeing to a motion which minimally impacts their client’s case, a lawyer may fight it, necessitating a hearing. As seen in the scheduling table above, this one decision can add significant time to a case. Unfortunately, the Rules of Civil Procedure (and, to an extent, the Rules of Professional Conduct) do not provide incentives for expediency to curb these tendencies of the profession.

Professor Chiodo suggests institutional and individual changes can help improve the current backlog. Part of the Civil Rules Review mandate is to find ways of rewriting the rules that would allow and incentivize expediency. Using the current and new Rules, Professor Chiodo says courts also need to assert a more managerial and disciplinary role. The changes in the Rules will not be effective if they can be ignored or manipulated with impunity.

It is also up to individual members of the system to recognize the role they play in delays. As Professor Chiodo aptly put it, “No one raindrop thinks it caused the flood.” While there is a balance between zealous advocacy and professional obligations, it would help immensely if most lawyers took a moment to consider their actions. Is late delivery of expert reports necessary or just convenient? Is filing a particular motion helping the client’s case or simply creating billables?

Lawyers should also be cautious about impeding innovations meant to address delays. In British Columbia, the provincial legislature created the Civil Resolution Tribunal to alleviate similar delay issues in that province. The Tribunal has very limited jurisdiction which includes, among other things, motor vehicle accident claims under $50,000. The Trial Lawyers Association of British Columbia (TLABC) unsuccessfully challenged the constitutionality of the tribunal. During the three years it took to dispose of the TLABC’s challenge, most of the claims headed for the tribunal were put on hold. This means that people with cases in the tribunal's jurisdiction had to wait an additional three years to have their claims heard.

Delays in the civil justice system threaten access to justice and people's faith in the courts. The government needs to do its part by ensuring there are a sufficient number of judges and working to limit court staff shortages. However, members of the profession also need to take responsibility for their role in creating delay — and judges need to hold them to account when they don’t. Just as many raindrops created the flood the system is currently experiencing, it will take more than one bucket to bail out the sinking ship.