All parties must unite to tackle the access-to-justice crisis the Covid-19 pandemic has wrought on Ontario’s civil courts, says Oakville personal injury lawyer Weston Pollard.
A recent CBC story reported that as many as 100,000 cases remain on hold in the province after the courts were shut to in-person proceedings last spring.
While some trials and motions have been heard virtually, those cases have proved the exception rather than the rule, considering the Ontario Superior Court of Justice’s ongoing policy of deferring as many matters as possible.
Meanwhile, cases that are ready to move forward must compete with serious criminal matters – which tend to take precedence when Superior Court judges are being assigned.
Injured people stuck in limbo
Although accident victims have borne the brunt of the delays, there are no winners in the current crisis, says Pollard, partner with Edwards Pollard LLP.
“People who are injured often can’t work, so they’re stuck in this limbo – making no money and not able to get better because they aren’t getting the medical rehabilitation benefits they need. Even before the pandemic, they faced a long wait for justice, but now it’s overwhelming,” he says. “But I don’t think it’s good for insurance companies to have open claims just sitting there either.”
“If we’re going to clear this massive backlog, we’re all going to need to be more creative,” Pollard adds.
In the early days of the pandemic, Pollard says he was pleasantly surprised by the reaction of insurers, who initially seemed willing to get quickly to the heart of matters – requesting only key medical and financial records for personal injury lawyers.
“It was quite refreshing, because normally they want every detail of the personal support workers, therapists and any other treatment providers you’ve even thought about consulting.” he says. “With just the basics, we were able to operate quite efficiently and move forward well considering the courts were closed.”
However, since Ontario’s third wave of Covid infections began in the spring, Pollard says defendant insurers have reverted to a holding pattern, which places plaintiffs in a difficult position.
“With pre-judgment interest rates so low, insurers are holding all the cards. They don’t really have anything to lose by just sitting and waiting. At some point, they’re hoping plaintiffs will get desperate and take a lowball offer,” he explains. “Injury victims are walking away from the system altogether, and those who are in it are just left waiting.”
Feds pledge $50 million to alleviate case backlog
With so much unknown about how and when civil courts will return to normal, Pollard says it has become increasingly demoralizing to talk clients through the process. Pre-pandemic, he says personal injury victims could expect some sort of resolution within two to three years, whether via settlement or trial. Right now, scheduled trials continue to be bumped from one date to another, while new clients face even greater uncertainty.
“I can’t even say when their cases might go to trial if one is required because nobody knows,” Pollard says.
A recent federal government pledge that will see $50 million injected into the justice system, creating 13 superior court judicial positions across the country, will go at least some way to alleviating the problem, he says.
“Ontario on its own could probably use 15-20 more judges, so it’s probably just the tip of the iceberg of what’s needed,” Pollard says. “It’s great spending money, but I don’t think that’s all that’s necessary.”
He says insurers as well as plaintiffs have plenty to gain from any solutions that can be found to the access-to justice issue. While low interest rates hold down the cost of carrying each individual matter, he says there’s no way around all the extra work they bring.
“Insurers will have to hire more people, because there’s only so many claims one adjuster can handle,” Pollard explains. “In the big picture, all this delay is not good for anyone.”
Striking jury notices
One way plaintiffs have attempted to exert more control over their matters is by applying to have jury notices struck. Pollard says insurers have traditionally exercised their right to a jury trial because of a perception that they are harder on plaintiffs than judges sitting alone, but courts have been more receptive than normal to striking motions because there is such little prospect of in-person jury trials resuming in the near future.
Still, the status quo favours insurers because motions to strike add another layer of process and delay, according to Pollard, who suggests a compromise could be reached where matters on the trial list for the foreseeable future would automatically proceed in front of juries where possible, and before judge alone if not.
“That would give some certainty to lawyers and plaintiffs to know that regardless of what stage of reopening we’re in, your trial will go ahead during that sitting,” he says. “Any kind of certainty is a weight lifted, because it gives you some light at the end of the tunnel, one way or another.”
If you have been injured in an accident and are considering hiring a lawyer to represent you, check out Edwards Pollards blog for tips for choosing a personal injury lawyer.