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.
