Restarting the Courts and Tribunals in Ontario

MY THOUGHTS ON GETTING BACK TO WORK

 Hello as most of you know by now I don’t often post my opinions on the world wide webby thing unless my desire to be a smart ass outweighs my general caution. In any event as I posted the notice that there is a task force on re-starting or how to re-start the Courts, I got to thinking, not something I like to do these days but as time is not in short supply I slipped up and decided to put my two cents in whether I have a horse in the race or not.

 As a preamble and before the multitude of responses in respect to access to justice, hypothetical injustices and just plain trolling let me say that what is to follow is an objective, practical application of the rules and not an analysis of the subjective concerns, those bugs have to be worked out later, the intent here is to consider the reanimation of the profession from the bottom rather than from the top where I would suggest the greater demand lies both for the community and economically for both those practicing it and those that need it.

 Further to the above, this discussion and I hope it is a reasonable professional discussion, is based on what I would consider as the existing rules and procedures of the Courts thus not requiring any major changes to approach other than practical accommodations. Not as if this profession generally reacts well to change after all.

Ok enough preventive disclaimers.

 My first suggestion would be to reinstate the limitation periods, while this has already been done on a limited basis in respect to some tribunals, more procedurally that in respect to pubic access and by the Courts in matters heard under the urgency exception in the upper Courts, I believe that to a large extent practical limitations should be reinstated as these periods are essential for the following substantive and procedural reasons;

 a)       the Courts have determined that limitations are of primary importance not only given the statutory requirements but due to the practical reasons behind such statutes. This position has been often repeated as in Levesque v. Crampton Estate, 2017 ONCA 455 (CanLII) which stated’

 [54]    As Sharpe J.A. noted in Canaccord, at para. 24, the purpose of the Limitations Act, 2002 is to “balance the plaintiff’s right to sue with the defendant’s need for certainty and finality.”

 b)      that limitation periods both generally and procedurally act as the engine to the system requiring actions to be taken within specific periods, notices to be given and response made. The practical result is that matters have to move ahead and the profession then has work to both commence or defend such actions in the appropriate manner.

 c)       the limitation periods are of social importance especially in times like these despite the obvious economic limitations being experienced insofar as they avoid prejudice to plaintiffs and defendants that have pending matters and are being prejudiced by delay, those with judgments now unable to collect, and those with matters to be commenced or defended without the ability to resolve same either by mediation or trial.

 While it is noted that the above cannot be universally applied (various tribunals) in terms of substantive hearings, they can be applied on a limited basis as has already been done in terms of procedural limitations thus moving the system along, moving existing or new matters along and/or encouraging resolutions to existing or new matters.

 If we assume for a moment that limitation periods to some extent both substantively and procedurally have been reinstated the question is would any changes have to be made to make the system generally or practically functional. My answer to this questions is, very few if any given that most rules and procedures already exist that would allow for limited if not substantial reanimation of the Courts and further to this where problems arise procedurally it is trite law that any Court and/or Tribunal has inherent jurisdiction to make orders as to its own procedures and conduct (subject to statue of course)

 So to consider this on a Court/Tribunal by Court/Tribunal basis I suggest the following;

 POA/Summary Conviction

 As we all know crime and speeders rarely slow down and these are ongoing matters that will do nothing but pile up. Tickets can be disputed by mail or online, first appearances can be done by video or telephone as can early resolution hearings to avoid backing up the Court’s with intended guilty pleas. Mediated pleas can be done by telephone or video with complex guilty pleas or trials being set over to a speak to date to set hearing dates down the line. While this does not deal with trial matters it removes the back up of potential pleas and procedural matters that the Courts will not have time for later.

 Small Claims

 The Small Claims Courts already have many procedures and rules that lend themselves to dealing with present circumstances insofar as;

 a)       Online filing and/or filing by mail deals with the limitations issues. Would take some flexibility with self reps but with emails, emailed or mailed notices and onus on represented parties to confirm notices and procedures the educational aspects to self rep parties could be mitigated

b)      Rules already provide for telephone settlement conferences and could be expanded to video

 c)       Rules provide for video or telephone motions, again would be easier with represented parties but not impossible for self rep parties. As an alternative the Courts could require or request written submissions in respect to motions.

 A further suggestion that some may or may not like arises with Rule 12.02(3) onward which allows the Court on its own initiative to strike pleadings whether claim or defence. I would suggest that given the recent increase in monetary jurisdiction it is time for the Small Claims Court to start enforcing its own rules. I know at this point there are many of you jumping to your keyboards to tell me how unjust this is as Small Claims is the people’s court and everyone as is often said in Small Claims should have their day in Court. That is the way it works and depending on which side of the order of the Court you are on you may think the Judge a judicial genius or someone that should just read the rules.

 However I would suggest that the Court is now dealing with serious money, money that is equal to a party’s lifetime investment in something or other, the time for Judge Judy is over, vexatious claims must be dealt with summarily as the impact and cost of having a day in Court on a claim or defence that is this substantial is prejudicial to at least one of the parties and potentially contributes to the overall losses given the costs restrictions in the Small Claims Court versus the increasing complexity of matters and the length of trials.

 Further to those of you still thinking that I am Snidely Whiplash with a keyboard (Google it) it must be noted that the Rules already provide for the dispute of a dismissal order of this type which can be done by motion and either telephone attendance or written submissions.

 In summary with the re-institution of limitation periods, settlement conferences and dismissals on a more realistic basis not only would the list not get backed up but reasonable trial dates could be foreseen and/or matters mitigated to settlement as there would be incentive to do so. Would not eliminate the list but would avoid the disaster awaiting without some action.

 LTB/WSIB/Labour/HR Tribunals etc

As indicated above these Tribunals are to a large extent paper driven and as such can be evaluated as same. While it is clear that evictions cannot proceed without full hearings and as implied above I agree with those that suggest that trials and hearings involving cross cannot or should not be done by video despite past limited precedent for same (Asking too much even for the sake of efficiency as cross is to some extent an art and requires the pressure of the Courtroom and to be blunt looking the witness in the eye) However non-eviction matters, mediations, procedural applications, requirements and written appeals often the sole substance of HR, Labour and WSIB could all proceed unimpeded.

 While the above does not cover everything that could or would crop up it is simply my two cents, the upper Courts seem to be getting some attention from better minds than mine so thought the rest of us should discuss what is left.

 Stay Home, Be Safe