‘By: Brandon Orct’

Ontario suffers from an access to civil justice problem. Civil trials in Ontario are chronically delayed and backlogged, while the COVID-19 pandemic has done nothing but exacerbate this problem. A particularly salient proposal aimed at addressing this delay and backlog is imposing time limits on civil trials. However, despite the potentially ameliorating effects of time limits on the access to civil justice problem, there remains a considerable impediment to imposing such limits: the Constitution.

The purpose of this piece is to outline how section 96 of the Constitution Act, 1867 obstructs provinces like Ontario from imposing time limits on civil trials in an effort to enhance access to civil courts. The piece specifically points to Trial Lawyers Association of British Columbia v British Columbia (AG)—and the Supreme Court’s endorsement of the unwritten constitutional principle of the rule of law—as the main obstacle to adopting measures that can advance access to civil justice. The piece concludes by discussing two brief considerations that may assist in balancing a time limit scheme with competing constitutional demands, even if unwritten and perhaps uncertain.

Accessing Ontario civil courts and the imposition of time limits

Prior to the first reported case of COVID-19 in Ontario, delay in civil trials was the norm. Longer trials—those greater than two weeks—continued to persist, adding to a significant backlog of cases in the system.[i] This backlogging has increased on an average of 23% per year.[ii] More problematic is the increase in average time needed to dispose of a civil case in Ontario. From 2014–15, the average disposal time was 659 days; by 2018–19, the average time was 904.[iii]  The COVID-19 pandemic has done nothing but extend delay and add to the systemic backlogging of civil trials. At the height of the pandemic, the Ontario Superior Court and other provincial courts suspended regular court operations.[iv] Despite the Court’s unprecedented adoption of technology and remote hearings, many legal organizations and practitioners have continued to note the persisting backlog of civil trials.[v]

The Supreme Court of Canada has already recognized that the civil trial continues to become increasingly expensive and protracted, where many litigants are unable to afford to go to trial.[vi] Without an effective and accessible means of enforcing rights, the rule of law itself is threatened.[vii] With these issues in mind, how do we effectively address the chronic delaying and backlogging of civil proceedings in Ontario in a manner that advances access to civil justice and the rule of law?

Imposing time limits on civil trials has the potential of addressing the festering delay and backlog in Ontario civil courts.[viii] Studies on the length of Canadian civil trials demonstrate that a modest reduction in the average trial length would permit many additional trials to be heard in Canadian courtrooms annually.[ix] But if this is the case, why not impose time limits on the civil trial or civil justice system generally? Ontario already experiments with time-limited trials under Rule 76 of the Rules of Civil Procedure, where parties allot time for opening statements, presenting evidence, cross examinations, and re-examinations; the trials conducted under Rule 76 themselves cannot exceed five days in duration.[x] Perhaps the more important question is not necessarily how do we address enhancing access to civil justice through time limited trials, but why have we not done so despite the exacerbating delays and backlog in Ontario?

Colloquial explanations tend to focus on the rigidity of the legal culture and its reluctance to embrace change, or concerns with enforcing time limits without accounting for varying complexities in different types of civil disputes. However, a considerable impediment to reforming the Ontario civil justice system is not merely the profession or practical considerations, but the Constitution.

A Complicated Constitutional Affair: Sections 92(14) and 96 of the Constitution Act, 1867

The Constitution Act, 1867 imbeds a (potential) conflict between ensuring the rule of law and the proper administration of courts, which may include legislative efforts to enhance access to Canadian courts. Under subsection 92(14), provincial legislatures possess exclusive authority to make laws in relation to the administration of justice within the province.[xi] This authority applies to civil courts, including the procedure in civil matters within those courts.[xii] Provincial legislatures effectively have the power to impose at least some conditions on how and when people have a right to access the courts,[xiii] which could include time limits on civil trials.

However, subsection 92(14) does not operate in isolation, nor does it confer an unfettered power onto provincial legislatures to impose conditions on accessing courts. Such power is limited by virtue of section 96 of the Constitution.[xiv] Although section 96, upon its text, merely confirms the appointment of judges to courts of inherent jurisdiction, the Supreme Court’s jurisprudence on section 96 is definitive and clear: legislatures at any level cannot enact legislation that abolishes superior courts or removes part of their inherent jurisdiction.[xv]

Section 96 and the lingering consequences of Trial Lawyers

The Supreme Court’s decision in Trial Lawyers illustrates the necessary balancing between sections 92(14) and 96. In Trial Lawyers, the Court reaffirmed the right to access superior courts under the ambit of section 96 by relying on the unwritten constitutional principle of the rule of law.[xvi] At issue was whether British Columbia’s hearing-fee scheme was constitutional, specifically as the scope of the exemption was insufficient and the scheme unduly restricted access to British Columbia’s courts. While the Court recognized the province had the power to charge fees for court services under section 92(14), this power to impose fees is not unlimited.[xvii]

The Court held the impugned hearing-fee scheme was unconstitutional for violating section 96. Intertwined with section 96 was the unwritten constitutional principle of the rule of law, which necessitates individuals to possess the right to access the courts.[xviii] Without access, there could be no rule of law. However, British Columbia’s hearing scheme effectively deprived some individuals of having private and public law disputes resolved by courts of inherent jurisdiction where individuals could not afford to pay the fees without undue financial hardship.[xix] Moreover, the exemptions within the scheme were insufficient to render the scheme constitutionally compliant with section 96. An exemption for only the truly impoverished or indigent set the access bar too high.[xx]

Although Trial Lawyers deals with hearing fees, the Court did reject an “access to justice” argument seeking to support the scheme. Specifically, the hearing-fee scheme promotes proportionality and efficiency by weeding out unmeritorious cases and encouraging shorter trials, thereby actually increasing access to the courts.[xxi] In rejecting this contention, the Court essentially agreed with the trial judge’s finding that the link between the hearing fees and increased judicial efficacy and fairness was “dubious.”[xxii] Here, we see section 96’s guarantee of accessing courts outweighs certain legislative attempts geared towards ensuring the proper administration of courts.

Going Forward Past Trial Lawyers

The majority decision in Trial Lawyers has garnered considerable criticism, more so in how the Court came to the decision rather than the decision itself.[xxiii] There is also growing skepticism about Trial Lawyers’ clarity going forward, especially with the decision’s emphasis on unwritten constitutional principles. The Supreme Court has also recently diminished the role unwritten constitutional principles ought to play in constitutional analysis, raising further questions about how relevant Trial Lawyers remains.[xxiv] Nonetheless, Trial Lawyers is good law and the relevant authority on this particular issue about balancing competing constitutional demands between sections 92(14) and 96.

Section 96 is generally understood as guaranteeing the core jurisdiction of superior courts.[xxv] This guarantee ensures that any legislative efforts related to the proper administration of justice that incidentally restricts access to Ontario civil courts must not neglect section 96, regardless of the policy objective.[xxvi] Imposing time limits on civil trials held in Ontario’s Superior Courts, which effectively restricts litigants’ access to the courts, would consequently need to comply with section 96 despite the access to justice advantages. Failing to do so would meet a similar fate as British Columbia’s then hearing fee scheme. Time limits for trials, like hearing fees, are certainly paradoxical: both may advance the objective of enhancing access to civil justice while incidentally restricting access to superior courts.

In light of the constitutional impediments to advancing access to justice raised in Trial Lawyers, there are two important considerations relevant for the purpose of imposing time limits on civil trials. First, whether there is a distinction in how time limits and hearing fees restrict access to civil courts. Hearing fees effectively restrict access to courts discriminatorily, as those experiencing financial hardship—who are not captured by an exemption—would be deprived of an opportunity for their case to be heard. By contrast, time limits would not affect whether one’s case is heard at all depending on the financial situation. Rather, time limits affect how the case is heard generally with no distinction made based on the financial situation of litigants. This distinction is perhaps better suited at complying with Trial Lawyers Association and section 96’s guarantee of the right to access courts. Moreover, time limits on civil trials are also likely to result in more efficient use of judicial time and resources, which would enable more cases to go before the court for adjudication. By ultimately ensuring more people can access the courts, time limits on trials may more effectively balance restricting access (on a micro-level) while enhancing access (on a macro-level) in accordance with section 96 and the rule of law.

Secondly, whether a time limit scheme ought to include exemptions based on judicial discretion. Exemptions in the time limit scheme, like the hearing fee scheme, could bolster the scheme’s constitutionality with section 96. Practically, flexibility in any time limit scheme may be required to account for the varying complexities in civil disputes. Constitutionally, exemptions for time limits may similarly be required in circumstances where the case merits judicial discretion in extending time limits. This would only buttress the scheme’s constitutionality in accordance with section 96, as it would still ensure litigants can access courts. However, for time limits on trials to have the desired effect of truly enhancing access to justice, such discretion ought to be used sparingly.

Section 96 is certainly a hurdle to imposing time limits on civil trials. Whether such a hurdle is insurmountable has yet to be seen, even in the “aftermath” of the pandemic and the systemic delays and backlogs facing Ontario’s civil courts. Only time will tell.

—

About the author: Brandon Orct is a Juris Doctor candidate at the University of Ottawa (2022). Brandon has a Bachelor of Arts from the University of Toronto (2019). All errors are the author’s own.

Note: To avoid potential conflicts, all student blog posts are anonymized during the screening, editing, and review processes; Brandon was not involved in his capacity as OLR Editor-in-Chief.

[i] See Ronit Dinovitzer & Jeffrey S Leon, “When Long Becomes Too Long: Legal Culture and Litigators’ Views on Long Civil Trials” (2001) 19 Windsor YB Access Just 106 at 107. See also J S Leon, A M Gans & F P Morrison, Civil Litigation Task Force Final Report (Toronto: The Advocates’ Society, 1995) for the definition of “long trial,” which refers to trials longer than two weeks.

[ii] See Office of the Auditor General of Ontario, Annual Report 2019: Reports on Correctional Services and Court Operations, vol 3 (Office of the Auditor General of Ontario, 2019) at 138–40. Look at Appendix 13. Note this increase is pre-pandemic.

[iii] Ibid at 98–99.

[iv] Chief Justice Geoffrey B Morawetz, “Consolidated Notice to the Profession, Litigants, Accused Persons, Public and the Media” (updated 13 May 2020), online: Ontario Superior Court of Justice <www.ontariocourts.ca/scj/notices-and-orders-covid-19/consolidated-notice/#B_SUSPENSION_OF_IN-COURT_HEARINGS_AND_JURY_TRIALS>.

[v] See e.g. Amanda Jerome, “Backlogs at Court, A2J for jury trials at risk as pandemic persists” (17 August 2021), online (blog): The Lawyer’s Daily <www.thelawyersdaily.ca/articles/29047/backlogs-at-court-a2j-for-jury-trials-at-risk-as-pandemic-persists>. Jermone comments on the backlogging of civil jury trials in particular.

[vi] See Hryniak v Mauldin, 2014 SCC 7 at para 1.

[vii] Ibid.

[viii] See Kevin LaRoche, M Laurentius Marais & David Salter, “The Length of Civil Trials and Time to Judgement in Canada: A Case for Time-Limited Trials” (2021) 99 Can Bar Rev 286.

[ix] Ibid at 308 (for Ontario, reducing the average time in trial by ten per cent would be the rough equivalent of adding 23 judges to the bench of Ontario’s Superior Court). This study also looked at British Columbia and the Federal Courts, with similar results.

[x] Ontario Rules of Civil Procedure, Rule 76. See also LaRoche, Marais & Slater, supra note VIII at 312–13.

[xi] See Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 92(14), reprinted in RSC 1985, Appendix II, No 5 [Constitution Act, 1867]: “[i]n each Province the Legislature may exclusively make Laws in relation to…[t]he Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of the Provincial Courts, both of Civil and Criminal Jurisdiction, and including Procedure in Civil matters in those courts.”

[xii] Ibid.

[xiii] See British Columbia (AG) v Christie, 2007 SCC 21 at para 17.

[xiv] See Trial Lawyers Association of British Columbia v British Columbia (AG), 2014 SCC 59 at paras 24–28 [Trial Lawyers Association].

[xv] See MacMillan Bloedel Ltd v Simpson, [1995] 4 SCR 725 at paras 15, 37, 130 DLR (4th) 385; Trial Lawyers Association, supra note XIV at para 30; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 SCR 3 at para 88, 150 DLR (4th) 577.

[xvi] Trial Lawyers Association, supra note XIV at para 38.

[xvii] Ibid at paras 18, 24.

[xviii] Ibid at para 39.

[xix] Ibid at para 35.

[xx] Ibid at paras 46, 57.

[xxi] Ibid at para 61.

[xxii] Ibid.

[xxiii] See e.g., Asher Honickman, “Looking for Rights in the All the Wrong Places: A Troubling Decision from the Supreme Court” (30 October 2014), online (blog): Advocates for the Rule of Law <www.ruleoflaw.ca/looking-for-rights-in-the-all-the-wrong-places-the-supreme-courts-troubling-decision-in-trial-lawyers-association/>; Asher Honickman, “Day Three: Asher Honickman” (last visited 14 April 2022), online (blog): Double Aspect <https://doubleaspect.blog/2018/12/27/day-three-asher-honickman/>. The Honourable Marshall Rothstein, who dissented in Trial Lawyers Association, similarly criticizes Trial Lawyers in extrajudicial commentary before the Runnymede Society. See generally “The Hon. Marshall Rothstein – The Judicial Role in Constitutional Law and Administrative Law” (13 March 2020), online: YouTube <www.youtube.com/watch?v=8xC5AMgzDSM>.

[xxiv] See Toronto (City) v Ontario (AG), 2021 SCC 34; Gerard Kennedy, “Trial Lawyers Extends its Tentacles” (1 April 2022), online (blog): Advocates for the Rule of Law <www.ruleoflaw.ca/trial-lawyers-extends-its-tentacles/>.

[xxv] Trial Lawyers Association, supra note XIV at paras 28–29; Constitution Act, 1867, supra note XI, s 96.

[xxvi] See also J Gareth Morley, “Trial Lawyers of British Columbia v British Columbia: Section 96 Comes to the Access to Civil Justice Debate” (2016) 25:2 Constitutional Forum Constitutionnel 61 (“[a]ny measure restricting what claimants can allege, the evidence they can obtain, or the arguments they can make, restrict access” at 65).