“The civil justice system in Ontario faces an unprecedented crisis. Among other challenges, the COVID-19 pandemic has significantly reduced the availability of courtrooms. Trial courts have necessarily had to prioritize criminal and family law cases to the detriment of civil cases’ timely resolution. Consequently, civil justice reform has shot to the forefront as a public policy imperative. Procedural reforms have been implemented to respond to the challenge, including increasing the use of electronic filing and electronic hearings. In addition, more fundamental changes in the operation of the civil justice system are being contemplated, such as the potential elimination of civil jury trials. Whether these reforms will come to pass remains to be seen. In the meantime, our courts are charged with the management of a civil justice system that is being overwhelmed.
Judges of the Superior Court work tirelessly to keep the civil justice system afloat. This sometimes means that they must find creative ways to ensure that parties get their day in court in a timely manner. In so doing, they respond to the Supreme Court’s injunction in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, that no less than a cultural shift is required to preserve our civil justice system. In the cases at bar, the motion judge made such a creative order. He struck the jury notices and ordered that the cases proceed in three-week tranches. On appeal, the Divisional Court held that while the motion judge had the discretion to make that order, it was made on an insufficient evidentiary basis and was therefore arbitrary. It set aside the motion judge’s order and restored the jury notices.
There is no single province wide answer to the problems we face in delivering timely civil justice; local conditions will necessarily impact the choice of effective solutions. However, what must remain consistent across the province is that motion and trial judges have the discretion to respond to local conditions to ensure the timely delivery of justice. It is a necessary corollary to that proposition that intermediate courts of appeal should not lightly second guess those discretionary decisions. In the cases at bar, the Divisional Court did just that under the guise of a finding regarding the evidentiary record. That finding is unsupportable. The motion judge had an abundance of evidence to justify his order.”