Canada's backlogged civil and family courts in 'crisis,' according to lawyers group

Bringing civil and family cases to Canadian courts has reached a crisis point due to years of delays, according to a lawyers group dedicated to access to justice issues.

The Advocates' Society, a national organization of lawyers dedicated to justice issues, says the worst delays are in Ontario, where litigants can expect to wait up to five years to have a dispute settled by a judge. 

The society recently published a 19-page call to action that describes a clogged court system where delays are "endemic." It says the glacial pace of proceedings threatens the safety, livelihoods and access to justice for thousands of people waiting for their disputes to be heard. 

Most of all, the paper warns, the gridlock risks damaging the rule of law, undermining public confidence in the courts and, if allowed to continue, could create a two-tiered justice system where litigants with the deepest pockets can access speedy resolutions through private arbitration while others are forced to wait. 

Unlike the criminal courts, which the Supreme Court ruled must bring an accused to trial within 18 to 30 months of being charged, there is no prescribed limit on how long civil and family matters can take.

"We're approaching a breaking point," said Advocates' Society president Dominique Hussey, a Toronto intellectual property litigator and managing partner with Bennett Jones. 

"We are hearing so many stories about clients not being able to achieve justice in a timely way that it was clear to us that it is truly becoming a crisis."

The roots of the crisis first took hold during the COVID-19 pandemic, when the entire justice system was upended for months as courts sat idle during sweeping lockdowns under public health mandates.

Since then, the delays have worsened, with courts stymied, including by a lack of staff and judges. There were 79 federally appointed vacancies in Superior Courts and Courts of Appeal across Canada as of June 1, according to the paper.

Hussey said the dearth of qualified personnel to oversee cases doesn't just imperil the right to a speedy trial, but in some cases, it also keeps spouses trapped in abusive relationships they're trying to escape. 

"You can imagine a person would feel completely trapped and, not only that, feel betrayed by a justice system," she said.

Hussey added that emotionally draining proceedings can distract people from their jobs and families for years, "to say nothing about personal exposure to a physical harm and mental harm." 

The delays are so pervasive that they've infiltrated courtrooms at every level in every jurisdiction of the country, she said, with Canada's most populous provinces — including B.C., Alberta, Quebec and Ontario — experiencing the worst delays.

Delays cost the injured timely compensation

"It's affecting the lives of real people," said Andrew C. Murray, a personal injury lawyer and partner with Lerners LLP in London, Ont. "The system is slowly grinding to a halt."

Murray said he's the effects of delayed justice on his clients, many of whom have severe physical injuries. 

"I'm dealing with people who have spinal cord injuries, who might have an amputation, serious brain injuries of the type where you need a lot of supervisory care.

"If you cannot access your compensation in a timely way, the reality is those people have to do without and it's heartbreaking."

Murray said with trial dates up to half a decade away, it takes away the impetus for both sides to reach a compromise and settle, rather than endure a messy, costly and emotionally draining trial. 

"In order to have the proper environment to achieve that settlement, it sort of takes the pressure of the trial process to focus the attention of all sides. It's not just one side or the other. It's all sides that need to have that pressure."

Part of the problem stems from Canada's population growth, which has been so rapid that lawyers argue it has outstripped the justice system's ability to handle all the cases. Murray said the problem is particularly acute in his jurisdiction, where the 2021 census ranked London has the fastest-growing city in Ontario and fourth in Canada. 

"Year over year, if that continues, it doesn't take long where all of a sudden we need one more judge to be able to handle just the natural number of cases in the system for that number of people who happen to live here."

What's the answer?

The Advocates' Society's paper suggests a number of solutions, including:

• Hiring more court staff.
• Appointing more judges at the federal and provincial level.
• Fine tuning court procedures to promote efficiency. 

The federal government is responsible for the appointment of court judges, while provincial governments are responsible for the administration of justice, including court staff and the appointment of justices of the peace. 

In an email to CBC News, Diana Ebadi, a spokesperson for Justice Minister David Lametti, said he is "doing everything he can to fill [judicial vacancies] expeditiously at the federal level." 

Ebadi wrote that the federal government has spent $77.2 million over the last four years to streamline processes and improve access to justice in the family court system. 

"Our government believes that the family justice system should be accessible and easy to navigate, which is why we, along with Ontario, have continued to support a unified family court system."

The Ontario Ministry of the Attorney General did not return a request for comment by time of publication.