Law Times

Law Times • September 16, 2013 Page 5 NEWS AG not planning to appoint new masters Continued from page 1 case-management system are to blame for the delays, according to lawyers practising in Toronto. The problem is so severe that the "system has broken down," says personal injury lawyer Roger Oatley. "It's completely unacceptable that the court tells a litigant who is ready for a trial that they have to wait 2-1/2 years," he says. A similar backlog is affecting the civil justice system in Brampton, Ont., to a lesser degree, says Oatley. "The population in the GTA has exploded, and the resources — the number of courtrooms and the number of judges — hasn't changed appreciably for decades." Oatley says the problems in the system are becoming an avenue for tactical delays in cases where one party could benefit from more time. Some lawyers are asking judges in other jurisdictions to move cases to Toronto for "strategic reasons," he notes. In a recent case, Oatley challenged a motion to move a personal injury matter from Barrie, Ont., to Toronto. At the time, Barrie courts were booking trials for as early as November 2013 whereas in Toronto, the earliest available slot was in the fall of 2016. Superior Court Justice Mary Vallee called the delays "shameful" and decided against moving the case to Toronto. A case, of course, would need some connection to Toronto for counsel to bring up the idea of moving it there, says Oatley. But his firm has decided that even when there's some connection to Toronto, it will challenge such motions on access to justice grounds. "The government is simply going to have to accept the fact that if we're going to have a viable justice system in Ontario, they need to provide the administration of justice the resources to do the job," he says. Whenever he can, lawyer John McLeish says he'll book cases outside of Toronto. "It's a shame because the judges here are great," he says. It's true, he notes, that criminal proceedings get priority over civil ones and that civil litigation "in Toronto is the poor second cousin to these other proceedings." But while a lack of judges and courtrooms are realities of Toronto courts, so is a poor case-management system, according to McLeish of McLeish Orlando LLP. In Newmarket, Ont., McLeish says he and his opposing counsel were able to take care of small matters during a conference call with a judge instead of having to arrange a motion the formal way. He says it's also possible to correspond with judges via e-mail, with each party copied, in order to sort out minor matters without looking at the court calendar for the next available time for a motion hearing. While more resources would be great, McLeish says "the right kind of case management would do wonders." In Toronto, lawyers in civil cases have to fill out certificates of readiness in order to outline the time they need for the trial and the witnesses they'll bring to the stand. They must also have tried mediation beforehand. "Very often, it takes an inordinate amount of time to get through those two hurdles with a Toronto case even before the issue of delays in the court system comes up," says Oatley. But when it comes to the question of whether the system has enough judges, Smith said she's not rushing to conclusions. "Before reaching a conclusion about the sufficiency of judicial resources in either Toronto or Brampton, we will first examine scheduling practices and options to ensure we are maximizing all available facilities and the current judicial complement," she said. In Brampton, Smith said delays "are not apparent in scheduling either civil motions or trials" but noted her office is working with the Ministry of the Attorney General to secure two additional courtrooms, a motions hearing room, and two conference rooms in that court. Brendan Crawley, spokesman for the Attorney General of Ontario, said the ministry isn't planning on appointing new masters. The ministry, he said, has worked with the legal community "to improve and modernize Ontario's civil justice system, making it more accessible and affordable for the public." LT 'I simply did not want to be in Brampton court': Pieters Continued from page 1 courthouse. No other person in the room was asked for identification, although it later emerged that two people in the room weren't lawyers. Initially, the tribunal made a finding of racial discrimination, but the Divisional Court quashed that ruling. In June, the appeal court reversed the Divisional Court's ruling and upheld the earlier finding of racial discrimination. Geri Sanson, who represented Pieters and Noble, agreed that early resolution would have been a more "practical" way to deal with a racial discrimination case. "When I look at it from my practical lawyer hat, I look at it and to me it screamed out to a resolution at an early stage," she said. "This could have been, and in my mind should have been, a win-win situation." But when it comes to the implications, Sanson said the Court of Appeal's decision was extremely significant. "It's absolutely a landmark," she said. "Lawyering while black is alive and well in Ontario and across Canada." Sanson also spoke about the difficulty of bringing a discrimination case on the basis of racism. "The reaction to racism, unlike any other ground of discrimination in my practice and experience . . . it's a reaction that we get in a way that you don't see with other grounds," she said. "We seem to have a much greater appreciation of other grounds of discrimination [such as] disability even though [racism] is still very widespread in terms of discrimination. I think when it comes to race, our first reaction is: 'Absolutely not possible,'" she added. While the Court of Appeal's decision challenged that thinking, it was also a "hands-off " notice to the Divisional Court when it comes to matters already decided by the tribunal, Sanson said. The Divisional Court is supposed to intervene only in exceptional circumstances after the tribunal has made a finding, added Sanson, who noted the "re-examination and redetermination of the facts" at the Divisional Court level was wrong. For Freiman, the only person on the panel who spoke from the perspective of the respondent, the Court of Appeal's decision has made it nearly impossible to win a judicial review in such matters. "It is my belief that it's almost impossible, I might even say impossible, to win a judicial review. It is impossible on facts and it is impossible in law after this particular case," he said. Freiman, who acts on both sides of human rights complaints, said he agrees with the fact that racism pervades society and that people sometimes act on that basis without being aware of it. What he doesn't agree with is the notion that the existence of racism in society in general means it was a factor in a specific incident. "It is always easier to prove a case if you are allowed to assume that which is to be proved. That's the real meaning of begging the question," he said. "If you begin with the proposition that we live in a society pervaded by racism . . . can you on that basis draw the conclusion that in a specific case, there was a racist motivation? The reason I ask is because in our case, there wasn't a scintilla of evidence," he added, drawing smirks from the panel that included Pieters. For his part, Pieters said that after the incident at the Brampton courthouse in 2008, he didn't want to go back there and only recently returned. "For many years after that, I refused to take cases that would take me to Brampton court," he said. "I simply did not want to be in Brampton court." Pieters added that the Court of Appeal's decision has implications for the legal profession and the law on discrimination. It's now easier to bring a claim like his, he said, "and more difficult for those who engage in discrimination and profiling to shield themselves with official policies and procedures whether or not they are aware of their own discriminating behaviour." 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