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The court backlog: Is this access to justice? | Jasmine Daya

Friday, April 23, 2021 @ 1:50 PM | By Jasmine Daya


Jasmine Daya %>
Jasmine Daya
My articling student walked into my office with her head lowered, barely able to make eye contact with me as she said, “I’m sorry Jasmine.” It was not her fault that the presiding master at motions court denied our request to add a litigation guardian to the action.

The master wanted one paragraph added to the affidavit filed in support of the motion. The issue was that the next available date for the motion was October 2021 — seven months away, for this five-minute uncontested motion. Without the Order to Continue, the action is stayed and we cannot proceed to Examinations for Discovery.

The discoveries were recently cancelled when I learned that my client lacked capacity and prior to that they had been cancelled due to the early days in the pandemic when we had not yet determined how to proceed virtually. There is a companion action in the Newmarket court in which we were able to add a litigation guardian by requisition. The Toronto court rejected our requisition and instead stated that a motion was required.

There are five lawyers involved in the two actions that arise from significant motor vehicle accidents in 2017 and 2018. I have yet to advise my client’s daughter and litigation guardian. I am concerned that she won’t take the news well, desperately seeking closure of this matter which is nowhere in sight.

In a complex house collapse case in 2014 involving eight lawyers, my office has been trying to file a Trial Record. It has been rejected by the Toronto court four times. There is a companion action and third parties all on hold. We are now in breach of the timetable Order as the matter was not set down for trial by the specified date.

In addition, it currently costs $810 to file a Trial Record. We have paid $3,240 in unsuccessful court filing fees which will supposedly be refunded to my firm’s credit card. Each rejection comes with a one liner to serve as the court’s reasons for denying the submission.

Each rejection becomes increasingly nonsensical. The third rejection related to a third party. We asked counsel for the third party for his position in response to the court — maybe he would see something I was not seeing. The lawyer who I have known for years made me laugh, stating “I’m not trying to give you a hard time, but the court is wrong … I do not know what the court is talking about … There is no such thing in the Rules …”

He was right and those were my initial thoughts. I asked if I could send his e-mail to the court and he suggested that he send “a slightly nicer response.” He told me to “give [him] a minute.”

The fourth attempt to file the Trial Record included counsel’s polite e-mail response. The fourth rejection from the court included more ridiculousness when it mentioned a litigation administrator not being included. What litigation administrator?

In Toronto, we cannot talk to anyone at the court. Nobody answers the phone. We cannot walk into the court. We send e-mails to the Toronto court that sometimes garners a response that may or may not make sense. We are essentially stonewalled.

With respect to my clients, the Rules of Professional Conduct state that I am to perform “all functions conscientiously, diligently, and in a timely and cost-effective manner.” At present, when the court’s involvement is necessary, I feel like I’m failing my clients because I’m being set up to fail.

I am not sleeping well. I am working longer hours than I ever have in my entire career (pre-pandemic my work hours were already excessive). I don’t take days off. Like everyone else, I cannot enjoy life as we once did to help alleviate some of the stress.

How am I supposed to tell my clients that there was a delay caused by the court closure which lasted six months and now there is a delay because the court backlog won’t let me deal with a simple motion for seven months? Or because procedurally, I cannot file the Trial Record? Or because the court will not provide me with a pretrial date or trial date? Or because nobody at the court will talk to me? Or because I cannot even walk into the court to deal with the matter in person?

Please tell me how I am supposed to properly serve my clients and how I am supposed to sleep at night wondering if my clients will survive mentally and/or financially due to the delay, and whether I will be in trouble due to limitation or deadlines being missed due to no fault of my own. I anticipate LawPRO will have a surge of calls from litigators if they haven’t already.

I maintain that it’s an honour and a privilege to practise law, and that I am a proud member of the bar, but right now the system is failing, which means we as lawyers are being forced to fail.

The courts had not kept up with technology and made great strides during the pandemic to make necessary advances, which is positive news. There is however a much bigger issue at play that needs to be addressed — the backlog, which is snowballing. Every day that goes by is another day that we are not properly serving our clients and instead denying our clients access to justice.

I chose to speak out about this issue to assist other lawyers in knowing that they are not alone. I am also pleading with the court to address the situation. Please help us, we are sinking, despite every possible effort to stay afloat. 

Jasmine Daya is managing lawyer at Jasmine Daya & Co., a personal injury firm that specializes in club assaults, cyberbullying, claims involving minors and elder abuse. She can be reached at jasmine@jdlawyers.ca.

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