Trial Dates…here today…gone tomorrow

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As trial lawyers, at Brown Litigation, we always find ourselves ‘on deck’ for an upcoming trial date. In those few matters that find themselves without a middle ground, or resolution at hand, the trial becomes the necessary conclusion to the dispute.

While a minority of court disputes actually proceed to trial (I have heard the statistic of less than 4% of all claims commenced in Ontario), the numbers that do proceed still exceed the judicial and court resources available to handle the trials.

Every jurisdiction in Ontario has its own unique process for trial scheduling, however, they all share one common factor. Not all matters scheduled to proceed to trial will be reached.

Even with a fixed trial date, it is not uncommon to receive a call from the local trial coordinator on the day prior, advising that the matter cannot proceed due to a lack of available judges, or courtrooms. A new date must then be scheduled (in some instances over 1 year later).

For a select few litigants this brings a welcome delay from what would otherwise be a rainy day. For most others this is a tremendously frustrating and costly delay. While some costs incurred in preparing for an aborted trial need not be incurred again, for the most part, the lawyers and the parties are required to re-prepare for the next date resulting in an overall increase in already significant legal fees (not to mention the increase in time lost to preparation by the parties themselves).

In advance of the new trial date, witnesses need to be refreshed, lawyers need to refresh and note up their submissions and law. Summons need to be reissued. All of these items add up and there is no guarantee the matter will be reached on the next date.

While all of this is enough to frustrate any tax paying litigant, and reflect poorly on the justice system, the reality is that the entire system encourages resolution by the parties, and discourages the consumption of limited court and judicial resources to resolve disputes.

Aside from a select few genuine or novel disputes, any party examining its options including court process, is generally well-served trying to pursue an alternative dispute resolution process or settlement.

As officers of the court, and key consumers of the system, it remains our job as lawyers to explain the frailties of the civil justice system to our clients at an early stage. This becomes all the more imperative when the costs and time consumed by the system can be staggering.

D. Jared Brown – Lead Counsel

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