Justice Denied: Constitutional Remedies for Systemic Delay

Slaw.ca Access to Justice Column, December 14 2022

Found Online at https://www.slaw.ca/2022/12/14/justice-denied-constitutional-remedies-for-systemic-delay/

Justice Delayed

Suppose you run a small widget-making business in Ontario. You sent crates of widgets worth $100k to a customer, but they refuse to pay. They say there’s something wrong with the widgets, but you know this isn’t true and you can prove it. The good news is that contract law obliges your customer to pay you, and procedural law allows you to seize their assets to satisfy the debt if they don’t. The bad news is that, if you sue and the other side plays hardball, it will probably take at least four or five years to get the matter to trial. By that point, the mounting toll of wasted hours and legal fees may well have led you to abandon your claim, or settle it for pennies on the dollar. If you do persevere, there’s a good chance your defendant will have disappeared or gone bankrupt by the time you get your judgment.

Now suppose you are a tenant in Ontario whose landlord refuses to do essential repairs, or you are a landlord whose tenant refuses to pay the rent. The good news is that the Residential Tenancies Act protects your rights, and the Landlord and Tenant Board (LTB) is mandated to make the other side do the right thing. The bad news is that the average case now takes seven to eight months to be heard by the LTB. If you are counting on a functioning furnace in your apartment before winter, or counting on the rent from your tenant to pay your mortgage before the bank forecloses, you may well be out of luck.

Delay is an egregious problem across the courts and tribunals that hear private law matters in Ontario. (In public law matters involving the state, delay is also an issue but there are more tools to deal with it, such as the firm timelines from R. v. Jordan and the doctrine of abuse of process.) Some of the delay is caused by parties. But a huge chunk is systemic delay, caused by the justice system’s inability to assign adjudicators and physical or virtual forums to cases whose parties are ready to be heard.

It is entirely within government’s power to fix systemic delay. On the tribunal side, it’s a matter of the province appointing enough adjudicators to the Boards, appointing competent adjudicators, and making sensible decisions about online and offline hearings, rather than forcing everything into online hearings that aren’t working. In the Superior Court of Justice, there are currently 18 judicial vacancies that the federal Minister of Justice would have to fill. However systemic delay in the SCJ is also created by the rules of civil procedure, by obsolete technology, by lack of court staff, and other factors that are within the control of the province or the judiciary itself.

Can we, the citizens of Ontario do more than beg and plead and hope that our various branches of government will eventually do the right thing?

The Rule of Law

Perhaps the constitutional principle of the rule of law requires governments to provide courts and tribunals capable of offering reasonably prompt access to justice.

The Canadian Charter of Rights and Freedoms states that Canada is “founded on principles that recognize … the rule of law.” The Supreme Court has identified the rule of law as a “fundamental and organizing principle of the Constitution.” Most importantly, the SCC has held that the rule of law requires, among other things, “the creation and maintenance of an actual order of positive laws.”

What does “maintenance of an actual order of positive laws” require of our government? Is it enough to establish tribunals and courts and put statutes like the Residential Tenancies Act on the books? Or does it mean that people must have reasonably timely opportunities to assert their legal rights, and have them upheld and enforced by the state? Courts might be ready to find that the province is falling short of its constitutional obligation to maintain an actual order of positive laws.

Section 96 and the Superior Courts

A second constitutional avenue to prompter justice runs through section 96 of the Constitution Act1867. On its face, section 96 does no more than mandate the Governor General to appoint judges of the superior courts. However, the SCC has held section 96 to guarantee a sphere of jurisdiction for these courts.

In 2014’s Trial Lawyers Association decision, the SCC held that section 96 forbids governments to unreasonably infringe people’s access to them. In that case, excessively high court filing fees established by the government of British Columbia were struck down on this basis. “Access to justice,” Chief Justice McLachlin wrote, “is fundamental to the rule of law.” The provinces do not have the right to “administer justice in a way that denies the right of Canadians to access courts of superior jurisdiction.” Courts might be ready to find that governments’ creation and tolerance of systemic delay is infringing people’s right of access to section 96 courts.

Section 96 and Tribunals

A section 96 argument might be even stronger regarding systemic delay in provincial tribunals. The provincial statutes that empower the tribunals typically foreclose access to superior courts. You cannot sue your landlord or your tenant in the Superior Court of Justice, or even the Small Claims Court. This makes sense, so long as the tribunals entrusted this work are properly resourced, designed, and managed.

However, if they are not, this may create another line of constitutional attack on provincial mismanagement of the tribunals. Provinces cannot remove classes of dispute from the jurisdiction of superior courts, and entrust those matters to tribunals, unless certain conditions are met. These conditions were established by the SCC in the two Residential Tenancies cases and in last year’s Article 35 Reference interpreting section 96.  They pertain, broadly speaking, to the function of the superior courts within the Canadian legal system. However, the 2014 Trial Lawyers Association case (discussed above) might be the foundation for a new condition. Perhaps provinces should not be allowed to exclude people from superior courts unless the tribunals they establish as alternatives offer a reasonable modicum of access to justice.

Justice delayed can, in a very real sense, be justice denied. Legal rights eventually become meaningless as the months and years drag on. Telling people that no one in a position of authority can hear their matter for months or years is tantamount to telling them that they, and their rights, are irrelevant. It is an affront to human dignity, and unlikely to promote trust and social cohesion. If Canadian courts mean what they say about the rule of law and access to justice, it is time for them to take another long hard look at systemic delay.