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Delay risks bringing civil justice system into disrepute

Public confidence in the civil justice system is being put at risk by the reaction to a landmark Supreme Court decision on criminal trial delays, says Barrie-area personal injury lawyer Steve Rastin

Last summer, in R v. Jordan, the nation’s top court set hard deadlines for criminal matters to get to trial without risking dismissal for delay.

But with no additional funding forthcoming from the provincial or federal governments, Rastin, managing partner of Rastin & Associates, tells AdvocateDaily.com that the response has been to redeploy resources from other areas. 

“Civil justice in Ontario has ground to a halt as courts deal with the criminal challenge,” Rastin says. “Clients are settling files when they shouldn’t, because of the increased financial pressure, and the civil justice system is being brought into disrepute.”

“I appreciate there’s a pecking order, but civil litigants seem to have been lost in all of this. The negative impact of the Jordan decision on access to justice in civil courts is the most underreported story of 2017, in my opinion,” he adds.  

Rastin says he understands the difficult position the Jordan decision has created for provinces, with the Globe and Mail reporting as many as 6,000 cases could be at risk of dismissal in Ontario alone. A big difference from previous decisions on unreasonable delay is that the Supreme Court has indicated Jordan also affects those charged with some of the most serious crimes, including sexual assault and even murder.  

In his decision for the majority of the court in Jordan, Justice Michael Moldaver wrote: “Extended delays undermine public confidence in the system. And public confidence is essential to the survival of the system itself.”

While Moldaver was talking about criminal trials, Rastin says the same could be said of civil ones.

“I don’t want to lose sight of the fact that this is a catastrophic development for society when people accused of serious crimes are allowed to walk free without trial, and I accept that something needs to be done,” Rastin says. “But in trying to fix the problems with the criminal justice system, it has created the unintended consequence of massively extending delays in the civil system, which is not in the interest of justice.”

Before Jordan, Rastin says it was typically possible in the central east region of the Ontario Superior Court of Justice where he practises, to get trial dates within a year of setting an action down.

Since then, he says extra steps have been added to the scheduling process, adding anywhere from 12 to 24 months to the wait for a trial. Rastin says the extra delays are at odds with recent changes to Rule 48 of Ontario’s Rules of Civil Procedure, which mean that any claim that has not been set down for trial within five years of its launch will be automatically dismissed.

“It’s ironic that at the same time as we are being encouraged to move cases forward, a trial schedule has been instituted that delays access to the courtroom by years,” he says.

In personal injury matters, Rastin says the only winners are insurance companies who can carry the cost of cases much easier than individual plaintiffs, who often need to update old expert reports by the time a trial date approaches.

“There are no easy solutions, but I have concerns that the decision in Jordan was made without an appreciation of all the ramifications it would have, not just to criminal justice, but to all branches of the justice system,” Rastin says.    

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