Canadian businesses relying on the court system for dispute resolution are increasingly facing significant challenges. Backlogs in commercial litigation, which can stretch from months to years, are putting the civil legal system under immense pressure. As Ian Matthews at Borden Ladner Gervais LLP points out, “Current delays in even getting motions and cases heard – sometimes months or years – are causing people to turn away from the civil court system as a way of resolving disputes.”
The strain on the system has been exacerbated by the prioritization of criminal and family law matters, often pushing civil disputes to the back of the queue. According to Gillian Dingle of Torys LLP, even in Toronto, where there is a specialized Commercial List, it can take eight months from the day requested to get a short motion heard, and at least a year for a longer motion or trial.
The delays have become so severe that many litigants are choosing alternative dispute resolution to avoid delays. Alison Fitzgerald from Bennett Jones LLP observes that arbitration can be much faster but notes that it also has its own costs, which parties need to weigh carefully. Arbitration’s appeal also lies in its flexibility and the ability to choose arbitrators with relevant industry expertise.
Tracey Cohen from Fasken Martineau DuMoulin LLP adds that in arbitration, “the world is your oyster” since parties can tailor the process to their specific needs, including selecting their preferred rules and arbitrators. However, she cautions that arbitration may not always be cheaper and cost recovery tends to favour the winning party.
As businesses grapple with these issues, legal departments like those at Pomerleau are adopting proactive measures to prevent disputes from escalating into litigation. Rob Wilson, Pomerleau’s legal director, highlights the importance of early intervention: “If we can give [team members] advice on what the contract says and what our rights are and what the other party’s rights are, and that resolves it at the outset, that’s a major win for us.”
The 2024 Special Edition on Litigation delves into these and other challenges facing Canadian litigators and their clients, with insights from top-ranked lawyers.