Friday, 24 August 2018

A Small Step Toward Faster Justice: Mandatory Dispute Resolution

Authors: Matthew Ryan, Summer Student and Peter Major, Q.C.

Slow courts are bad for the economy. Inefficient justice discourages investment, since businesses and investors cannot be certain that their property and contract rights can be effectively upheld. Even if an investor is confident about the strength of their claim, sluggish justice makes lawsuits more expensive­—to a point where would-be plaintiffs are sometimes better off abandoning their claims altogether. This uncertainty about the efficacy of the justice system creates a disincentive for businesses to enter contracts in the first place.
The World Bank’s Doing Business survey measures the ease of starting and conducting businesses across the world. One of the survey’s key metrics is the time taken to enforce a contract through the courts. While this survey does not measure individual Canadian provinces, the nation ranks a dismal 114 out of 190 countries for the enforcement of contracts. This is one of the worst rankings for an OECD nation, coming ahead of only Slovenia and Greece. The pain is felt in Alberta too, where lead times for civil trials can sometimes extend past three years.
In January 2016, the Court of Queen’s Bench of Alberta submitted a proposal to the provincial and federal governments to increase the number of full-time judges to fix the clogged justice system. This proposal was justified by the rapid increase in Alberta’s population coupled with slow or non-existent increases to the number of judges sitting on the Court of Queen’s Bench. Continued population growth has led Alberta to maintain the highest ratio in Canada for population to Superior Court Justices, with one Superior Court Justice for every 63,000 Albertans. By comparison, the national average was one Justice for every 35,000 Canadians when the proposal was made in 2016. In light of this, the Court requested an additional ten Justices to be appointed to the Court of Queen’s Bench. Since this proposal, only four have been added and that may only offset some of the pending judicial retirements on the near horizon. Now in 2018, justice remains as slow as ever.
 
Proposed changes by the Alberta Court of Queen’s Bench
In an attempt to speed up justice, the Court of Queen’s Bench of Alberta has proposed mandatory dispute resolution before litigants can book a trial date. This means that parties must participate in some form of dispute resolution, either through a Judge-run Judicial Dispute Resolution (JDR) or through a private mediator. This process is meant to offer parties an opportunity to settle disputes without encountering the time and expense of a trial. Although JDR services also depend on the Court’s resources, they can ultimately reduce court backlogs if parties settle and avoid a trial. The Court of Queen’s Bench is seeking feedback from the legal community and the public regarding this proposal. If implemented, this requirement will take effect January 1, 2019.
Dispute resolution can be effective in many cases where parties are open-minded and interested in settling. This is common with commercial litigation, where litigants often remain conscious of their litigation risk and enter disputes with their bottom line in mind. However not all parties in a civil dispute will navigate a lawsuit guided by pure economics. Dispute resolution can be a waste of time where one or both parties are rooted in their positions and unwilling to negotiate a settlement. Those who value principles over profit won’t find a resolution without a trial. In those cases, mandating dispute resolution will only slow things down by requiring parties to enter a dispute resolution process that is guaranteed to fail. This doesn’t necessarily mean the Court’s proposal is a bad idea. Mandated dispute resolution can still reduce wait times for trials if enough litigants are willing to engage with dispute resolution with a genuine interest in settling the dispute.
McLennan Ross partner Don McGarvey has offered his opinion on the proposed changes during recent interviews with the Edmonton Journal and CBC Radio. While the proposed requirement for dispute resolution is a step in the right direction according to McGarvey, it’s not enough to address the current backlogs facing the Court. Instead, the onus lies with the provincial and federal governments to ensure the justice system has adequate resources. This means hiring not only more Superior Court Justices, but also more support staff.
Along with increasing court resources and alternative dispute resolution, the World Bank’s Doing Business survey also identifies best practices for efficient civil justice. Some of these include: maintaining a specialized commercial court or division, expanding case management systems, court automation, and computerization. Alberta courts have well established court management systems firmly in place, they have ongoing improvements in computerization both in the courtrooms and administration offices, they are separated into different practice areas and over the past decade they have been earnest in trying to speed up processes through certain specializations. Unfortunately, the efficiency and success of all of these efforts often goes unnoticed or is unable to reach their full potential so long as judicial vacancies and sometimes razor-thin levels of support staff remain the status quo in Alberta.
If you are contemplating litigation but are already discouraged by the concern with the delay, or you are presently in litigation without seeing light at the end of the tunnel, understanding the value of the mandatory dispute resolution process would be of great value. Even better, if you think you and your opposing party are willing to consider settlement without a trial, this proposed change can accelerate the prospect of settlement or certainly help each of you narrow the issues that may need to be resolved at trial.
The commercial litigation group at McLennan Ross has years of experience assisting clients with these issues and are always happy to guide the way.

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