Just as it touched every facet of our society, COVID-19 had devastating impacts on Ontario’s civil justice system, impacts which will be felt years into the future. However, the issues affecting the system during and in the wake of the pandemic are not new – even before the March 2020 lockdowns took effect, Ontario’s courts were dealing with a massive backlog of cases causing months- or years-long delays. Now, there is hope among some personal injury lawyers that the courts will be forced to take drastic – or at least innovative – steps to address these challenges.
Last month, Law Times reported on Louis v Poitras. The case not only illustrates personal injury lawyers’ pre-2020 frustrations with the civil justice system, but may also predict a path forward.
Firma and Marcdere Louis were injured in a motor vehicle accident in Ottawa in 2013. They filed a claim against Jacques Poitras and two other defendants, but it would be years before a trial date was set. It was eventually confirmed for April 20, 2020, almost seven years after the accident. Then, COVID hit, and the trial date was lost. If ‘justice delayed is justice denied,’ – one of the legal industry’s favourite adages – then it’s very difficult to argue that the Louis’s received adequate access to justice.
In some ways, the impact of COVID-19 on Louis v Poitras serves as a reflection of the virus’s impact on society at large. Accident victims, especially seriously injured accident victims, are among the most vulnerable members of our society, and COVID has saved its most devastating impacts for the populations least able to weather them.
There is a silver lining to the Louis v Poitras story. According to Law Times, the Ontario Court of Appeal took unusual steps to ensure that the case would be heard, despite the lost trial date. After the court appearance was cancelled, the plaintiff’s personal injury lawyers asked that a jury notice, issued years earlier by the defendants, be cancelled. A jury notice is essentially a formal request that a case be heard by a jury rather than by a judge alone.
At the time of the plaintiff’s motion, jury trials were not being scheduled in Ontario. Judge only trials, though, were available within six months. The judge accepted the plaintiff’s motion, a decision that was successfully appealed in the divisional court before being reinstated in the Court of Appeal. The case was scheduled to proceed in three-week tranches beginning last month. Speaking to Law Times, one lawyer called the decision a “seismic shift” that signals to the lower courts in Ontario that “efficiency in delivering justice is the priority.”
When COVID-19 hit Ontario, the already overloaded court system was forced to confront two new challenges. The first was that existing delays would be exasperated by the necessary shutdown. The second is a massive wave of fresh litigation deriving from the pandemic, including class action lawsuits against allegedly negligent long-term care homes and long-term disability claims from COVID long-haulers, among others.
In order to confront these challenges, the courts will have to embrace the sort of creative, efficiency-minded thinking to which conservative organizations are typically averse. Reducing the number of jury trials and converting scheduled jury trials to judge only, where appropriate, is a good start.
The courts must also embrace new technologies that allow for more remote and online proceedings. This shift has already occurred at most law firms, including at Will Davidson LLP. Our personal injury lawyers now conduct a great deal of their business remotely, with no effect on productivity or efficacy.
It’s easy when discussing the wide-ranging effects of the COVID-19 pandemic to overlook the very real and devastating impact it has had on thousands of families across Canada. People have lost their lives and lost loved ones – that reality should not be forgotten. Many thousands more have seen their livelihoods destroyed with little help from any level of government.
When discussing topics like COVID-inflicted court delays, it’s important to remember who the civil justice system was set up to serve: the public. Whenever decisions are being made about how to address the challenges facing the courts, the end-user must remain top-of-mind.
If you or a member of your family has been injured in an accident, contact Will Davidson LLP today to schedule a free, no-obligation consultation. Our experienced team of Oakville personal injury lawyers will review your case and explain your legal options.