The Honourable Justice D.M. Brown – who is known for writing decisions that often feature critiques of the justice system – is at it again.
An article in the Globe and Mail discusses the decision. The ruling was made June 25th on a preliminary matter in a lawsuit brought by York University against a former assistant Vice President that is accused of perpetuating a $1.2 million fraud. The case is a year and a half old, has accrued hundreds of thousands in legal costs, with a trial date nowhere is sight.
Justice Brown said the case was a prime example of a serious problem with Canada’s judicial system. Increasingly people, especially those of limited means, face the prospect of legal fees exhausting their resources before they even get to trial.
At one point he suggests one of the root problems is the idea that "trials are bad" and "mediation will solve all problems" – a perception that has been growing in recent years. This has sapped the will to move the matter swiftly to trial.
"Such a state of affairs reflects an unacceptable failure on the part of our civil judicial system."
"One cannot overstate the oppressive effect on the judicial morale of the endless wave of cases which seem to be going nowhere in a civil justice system that is sinking."
It’s certainly fair to say that many cases end up costing more than they should. However in our experience at Hull & Hull, the majority of our cases actually do settle at mediation, which is mandatory in Toronto in any event.
Im many cases a mediation can be held very early on in the process, before too many fees have incurred on examinations for discovery and/or other legal steps in preparing a case for trial. Preparing for a full-blown trial on the other hand is an expensive and time consuming process.
Estate litigation is a prime example of where mediation tends to be successful. The fact that we most often deal with feuding families means that no matter how deep the frictions run, there are also emotional bonds there which can often help people make reasonable compromises on their positions.
While I believe that mediation remains a powerful component of our estates litigation cases, if mediation and settlement talks have gone nowhere after some genuine efforts have been made, the matter should then proceed "swiftly to trial".
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Enjoy your weekend!