Timely access to civil justice is at a crisis point in Canada: cases take too long while costs can be disproportionate to the matters at stake. This situation is so serious that Beverley McLachlin, former Chief Justice of the Supreme Court of Canada (SCC), calls it “the access to justice crisis”. Meanwhile, initiatives such as the UN’s Sustainable Development Goals (SDGs) emphasize “peace, justice, and strong institutions” (goal 16).
Even before the COVID-19 pandemic, the backlog in Ontario’s courts was increasing by an annual average of 23% while, from 2015-2019, the average time to dispose of a civil case increased by 37% annually. Delays have increased post-pandemic, exacerbated by the focusing of resources on criminal justice to comply with constitutional time limits for processing criminal cases, and by a lack of new judicial appointments to keep up with retirements.
While the courts have responded to some civil justice needs in the pandemic’s aftermath, little research exists on the nature and efficacy of their methods to resolve matters more quickly and cost effectively through mechanisms such as summary judgment motions and motions to strike, neither of which provides the protections of a full trial. There has also been little exploration of whether such procedures are being, or should be, used to address post-pandemic backlogs in the civil justice system.
The preliminary research of myself, Gerard Kennedy (University of Alberta), and Alyssa King (Queen’s University) suggests that, in response to pressure to decide matters without lengthy and expensive trials, Ontario’s courts use a variety of tools to dispose of civil cases, and that these include summary processes. Therefore, the overarching question of this project is: Are Ontario courts resorting to increased use of summary processes, particularly summary judgment, to address backlogs and longer wait times?
“Fighting the Backlog: How Ontario’s Courts are Using Summary Processes to Address Civil Justice Delays” will assess empirically whether Ontario courts are, and should be, resorting to an increased use of summary processes (and particularly summary judgment) to tackle civil justice delays. The project will also assess the impact on self-represented litigants of post-pandemic developments in the use of summary processes. This will be the first systematic empirical research on the use of summary processes in response to civil justice delay in Canada.
The project will focus on Ontario, because it has the country’s largest superior court; its procedural rules inform the rest of common-law Canada; and it is divided into eight judicial districts, which will facilitate analysis of the effects of local trends on summary processes. The project will use quantitative and qualitative methodologies to produce empirical data, which will then form the basis of evaluations of the use of summary processes and its implications for self-represented litigants. Data from online legal research databases, publicly available sources, and Freedom of Information requests will provide information on the number of summary processes occurring in Ontario over 10 years (5 years pre- and post-pandemic). This data will then be compared to the backlogs at each courthouse, revealing whether courthouses with greater backlogs have a higher percentage of summary determinations, and whether use of summary processes has increased post-pandemic. The qualitative portion will test the quantitative results against practitioners’ experiences by interviewing court staff, judges, and other legal professionals, as well as observing court proceedings, at four Ontario court locations. Finally, this project will describe and evaluate how Ontario’s Superior Court is responding to delay, and will discuss the implications of those findings, focusing on the experiences of self-represented litigants.
The focus on self-represented litigants is particularly relevant to the Nathanson Centre’s goal of addressing inequality. Most civil justice research since the pandemic has highlighted the uneven impact that post-pandemic procedural innovations have had on self-represented litigants and marginalized populations. There are indications that summary processes are particularly difficult for such populations to navigate, even while they are disproportionately affected by civil justice delays. An increase in the use of such processes may negatively impact their ability to access civil justice. This would have transnational implications, as the project will contextualize its findings with reference to access to justice in the US and in England & Wales, where procedural innovations have arguably outpaced Canada’s while leaving many less privileged litigants behind.
The project’s findings will be used to inform Professor Chiodo’s work as the academic member of the committee tasked with revising Ontario’s Rules of Civil Procedure, and will support work throughout Ontario and Canada on civil justice reform more generally. In doing so, this project will contribute to much-needed research on building a forward-thinking justice system that will be more accessible and inclusive to all.