THE LENGTH OF CIVIL TRIALS AND TIME TO JUDGMENT IN CANADA

A CASE FOR TIME-LIMITED TRIALS

Authors

  • Kevin LaRoche Borden Ladner Gervais LLP (BLG)
  • M. Laurentius Marais Compass Lexecon (Chicago|Washington)
  • David Salter Lenczner Slaght LLP

Keywords:

Trial delays, civil trials, statistical analysis, time-to-judgment, time-in-trial, case management, federal court, superior court, supreme court, access to justice, time-limited trials, limite de durée des procès

Abstract

That access to justice remains out of reach for most Canadians is undisputed. How to address that dilemma is a harder question. One repeatedly discussed barrier to access in the civil litigation context is the phenomenon of lengthy trials, which drive up costs for litigants, monopolize scarce judicial resources and threaten to delegitimize our judicial system by putting a litigant’s “day in court” out of reach. Discussions about access to justice, legitimacy and procedural reform in the civil justice system are well served if they rest on an empirical foundation. However, there is a dearth of statistical information with respect to civil, non-jury trials in Canada. For most jurisdictions, it is impossible to determine from publicly available sources how many civil trials occur every year in Canada, and in the case of every jurisdiction, how long those trials are. This original study reports data regarding the number (with limitations) and duration of civil non-jury trials in Ontario, British Columbia and the Federal Court of Canada, the length of time to judgment and the relationship between those two factors. This statistical evidence goes some distance in helping us understand the morphology of the Canadian trial system. It establishes that fairly modest reductions in average trial lengths would permit many additional trials to be heard in Canadian courtrooms annually. Materially increasing the number of bench trials that can be conducted improves access to justice. Trial time limits can reduce the average cost of litigation to litigants. Statistical analysis does not tell us if some trials are “too long” and provides no means of identifying those that may be. Whether a given trial is or is likely to be “too long” is in substance a normative question. That normative question has both systemic and particularistic aspects, both of which need to be considered by a trial judge. This article explores both quantitative and normative factors informing the debate over time-limited trials, concluding that Canadian civil justice systems are well-placed to begin implementing discretionary, judge-ordered
time-limited trials.

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Published

2021-09-02

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Section

Articles