That backlog seems to be cleared, as settlement conferences and trials are now being scheduled more expeditiously and via Zoom. The same cannot be said for the Human Rights Tribunal, where there are still extreme backlogs. We recently received a final decision on a case filed in 2018. The backlogs at the Canadian Human Rights Tribunal are often even worse.

These delays have now also bled into the Ontario Superior Court of Justice. We warned of lawyers filing in this forum through trumped-up claims for punitive and other exemplary damages in order to meet the $200,000 minimum threshold, but the situation is now untenable.

Our firm recently requested a short motion date on a procedural matter. The earliest available date for even a virtual hearing was November 2024. A case conference, which would previously be scheduled in seven to 10 days, was not available until February 2024. These simple, cost-effective proceedings are now being scheduled months ahead, bringing most litigation to a complete standstill and putting it at the mercy of co-operation between opposing counsel.

The old adage “justice delayed is justice denied” has never been more true. One would have thought, with the prevalence of remote video hearings, telephone conferences and the like, that the judicial system in Ontario had more tools available to move matters along than ever.

Prior to the availability of Zoom hearings and the onset of the pandemic, urgent motions could be heard in two days and summary judgment motions within four months. Why the sudden delay?

The system is broken. There is an insufficient number of judges to handle the sheer volume of hearings and motions being scheduled. Scheduling has never been easier but the bottleneck rests on the back end. No judges are available to hear the matters once scheduled.

Another issue is the use of placeholder motions, where counsel will schedule a motion as a mere tactic to move along litigation. Once the motion date approaches, parties will often settle, and the date vacated. However, that does not make it available to another party unless done well in advance.

There is also nothing to disincentivize lawyers from filing in a jurisdiction where their case does not belong. There must be severe cost consequences for obtaining a judgment or award in Superior Court that should have been in small claims court. Judges are often hesitant to award costs against plaintiffs who obtain low awards, below $35,000, the threshold. Some lawyers even have the gall to seek costs after being awarded those low amounts, a tactic that one judge said came “with chutzpah piling on top of audacity piling on top of gall.” In that case, the plaintiff won their case at a summary judgment motion, however, the amount was only $17,242.26, well within the small claims court range. The plaintiff’s lawyer then sought costs of $35,000 and was denied costs entirely (a probability when the case should never have been launched in Superior Court in the first place). An award against the plaintiff, on the other hand, would have been a clear warning not to clog up the courts with claims of relatively nominal value.

The solution is complicated, there is no one-size-fits-all answer. But more judges would be a start. On the other hand, this has been a boon to counsel representing employers, who can rely on the inherent delay of the courts themselves to buy their clients time while plaintiffs mitigate their damages and reduce any potential settlement amount or trial judgement.