Backlog

CHAPTER 12


"Backlog", like an achilles heel, is bringing the civil justice system to its knees. It is the major manifestation of delay, and the costs which accompany that delay, in the sytem.

The backlog must be attacked separately, and eliminated, if other measures taken to address the more effective processing of civil cases -- such as caseflow management -- are to be successful.

There are 9,000 civil cases on the pending trial list in Toronto. In Brampton, the number of cases on the list for trial has increased by almost 450% since merger in 1990, and in Ottawa the comparable figure is an increase of over 600% [45] ! Windsor, Whitby and Newmarket are other crowded urban centres where the problem is particularly acute. Indeed, across the Province generally, the size of the pending trial list has approximately doubled in that same period [46] .

Unreasonable delay, we noted at the outset of this Report, is "the enemy of justice and peace in the community." The inordinate delay, the increased costs, the almost certain frustration and cynicism, and the emotional strain for participants and litigants which accompany such backlogs are undeniable. They must be addressed and eliminated as part of the overall plan for restructuring the civil justice system, and retro-fitting it for the 21st century.

Coping with backlogs has been a growing occupation for judges, lawyers, and court administrators in recent years. It raises vexing difficulties, not the least because it invariably means the diversion of efforts from current directions. What is the best strategy for dealing with the backlog ? Where are the resources to be found ? What, for that matter -- and this is an important question to be addressed at the outset -- do we mean by "backlog" in the first place ?

We turn to these issues now.

12.1 Defining "The Backlog"

No civil justice system can provide instant trials. We believe the public recognizes, that there must be some reasonable period of time between when a case is truly ready for trial and the time of trial. Thus, there is, a distinction between the general "delay" in processing a case from beginning to end -- the period of time, or delay, which is of greatest concern to the public -- and the time that a case must wait to be reached for trial after it is ready to proceed and has waited that reasonable waiting period of time.

It is in this latter context that we use the term "backlog". In this sense, backlog is a defined term utilized for the purposes of assessing and managing trial caseload.

What is the reasonable period of time between when a case is ready for trial and the time of trial?

In Chapter 13 dealing with caseflow management, we have recommended that Ontario adopt general time standards for the disposition of cases. The recommendation proposes a period of 6 to 9 months as the criteria for the waiting span between settlement conference and trial. There should similarly be a standard for defining the backlog, in our opinion. We believe a reasonable period is 9 months.

RECOMMENDATION: We therefore recommend that the notion of "backlog" be confined to those cases which are truly ready for trial and which have been in a state of readiness awaiting trial for a period greater than 9 months.

Current statistics for the backlog of civil trials based on available eight month and twelve month aging statistics are found in Chapter 4.3 dealing with "Trends".

12.2 Identifying the Backlog

Having defined what "backlog" is, the next important step in dealing with the problem is to identify those cases easier which constitute it. This involves more than simply determining the names or file numbers of the inventory. It involves implementing a procedure to determine how much of that inventory is made up of cases that are truly waiting to be pre-tried or tried -- shaking out the system, as it is sometimes labelled. Only in this way can the actual size and makeup of the backlog be determined.

How many of the cases have already been settled, for example ? A recent experiment in Toronto, involving approximately 1400 of the oldest cases on the list revealed that over 70% of those cases had already been resolved (sometimes long ago) and, indeed, that some had already been tried! Ottawa has discovered a similar phenomenon.

The Toronto experiment marked the first stage of a planned attack on the backlog in the Toronto Region, worked out in co-operation by the Judiciary, Courts Administration and the Advocates' Society. The files relating to the 1,405 oldest cases in the system -- those set down for trial before December 1, 1991 -- were pulled. Letters were sent to the parties or their counsel requesting a status report. The initial response indicated that about 840 cases were closed, although the court had never been notified or its records did not capture that fact. Of the remaining cases, approximately 275 had already been pre-tried and given dates for trial. The balance were invited to attend a hearing before a judge to review the status of the matter. A large number of those cases as well, it turned out, had previously been settled, or had settled as a result of the notices being sent.

The exercise of shaking out the list, by purging it of dead cases and nudging the parties to do something about the ones that are still alive, is an essential first step in any attempt to address the backlog. It is frequently observed that cases are resolved when the lawyers and the parties are required to deal with them. The current Toronto and Ottawa efforts regarding backlog have confirmed, again, the accuracy of this observation.

In short, the "shake out" method reduced the "backlog", represented by those 1405 cases, by approximately 90%. What remains for pre-trial and ultimately, where necessary, trial, are the most difficult of the cases. If what appears to be the universal experience is the case -- namely, that only 3% to 5% of cases are actually tried -- then more of these cases will be resolved prior to an actual or full trial.

We think that this method of identifying and shaking out the list of backlog cases has much to commend it. It weeds out the cases which need not proceed to a pre-trial and/or trial, and it does so without inordinately draining scarce judicial resources. At the same time the shake out method requires the dedication of staff and resources to carry out its mechanics, together with an assured block of trial time at the end of the process to guarantee the disposal of the cases which have to be tried.

That identifiable block of trial time is also indispensable in providing the ultimate incentive for resolution. As many counsel and judges noted, during our consultations, "there is nothing like the certainty of a judge and a courtroom to cause a case to settle."

The phenomenon of a large number of cases remaining in the system, sometimes long after they have been settled, struck us as odd and surprising. Rule 48.12 of the Rules of Civil Procedure places a duty upon every party to an action, whether it is placed on a trial list or not, to inform the registrar promptly of any settlement. The Toronto experience, described above, and similar experiences in attacking backlogs in Ottawa and Windsor, indicate that this duty is not being performed in many instances. The practising Bar has an obligation to ensure that it is.

This is not simply a matter of a few clerks having to shuffle a few more papers around. It is a matter of the Administration having to provide the storage and retrieval infrastructure for a very large number of files across the province, at considerable expense to the public. Moreover, it is very difficult to plan, and to manage, an attack on the backlog -- or to manage the processing of cases on a continuing basis, apart from the backlog -- without an accurate grasp of the cases which are truly in the system waiting for trial.

We take this opportunity to remind the Bar of its obligations under Rule 48.12 to notify the court of any settlement. The relevant Bar organizations -- the Law Society of Upper Canada, the Advocates' Society, the Canadian Bar Association of Ontario, and the County and District Law Associations -- should take steps to educate their members and ensure better compliance with this duty. It may be that the Rules should be amended to provide a cost sanction of some form for those who fail to comply.

12.3 Dedicated "Backlog" Teams

The experience of most jurisdictions in the United States and Canada that have engaged in backlog reduction programs, and the literature on the subject, all indicate that the backlog should be addressed in a dedicated fashion, and separately from the ongoing flow of new cases.

We agree with this proposition in terms of the development of a special strategy to deal with backlog and in terms of the dedication of specific resources to alleviate the problem. However, it is important to note that the efforts to eliminate backlog must not be isolated completely from what is being done elsewhere in the system. They must be viewed as a part of the overall strategy for the improvement of the civil justice system, and integrated into that strategy. Their costs represent transition financing as part of the global strategy of implementing the new system.

In Toronto and in the East Region there are currently backlog reduction programs under way -- in co-operation with the Advocates' Society's efforts in this regard -- and in Central East and Central West Regions proposals are afoot for doing so. They are each somewhat different. What follows is a brief description of what is proposed or under consideration in these areas.

Ottawa

In Ottawa, it is proposed that there should be a running Civil List. Those putting forward the proposal estimate that to resolve the backlog within one year, six judges must be made available to work exclusively in sittings of four to six weeks, on the Civil Non-Jury List. Judges from other parts of the East Region should be asked to participate in this process, and consideration should be given to sending cases out of Ottawa to court locations within easy driving distance of the city. At least two anticipatory appointments be made now, the proposal recommends, for those judges going supernumerary in the near future.

The proposal also recommends that six law students or associate lawyers, funded by the province, be selected to examine all case files from the trial list and provide summaries of the issues involved, in order to determine the true extent of the backlog. This will also help to identify cases that have been settled. Forty-eight senior lawyers will then be selected to conduct pre-trials based on their experience in the claim categories. A schedule will be set up for a two week period with a goal of hearing 288 pre-trials for the period. One trial judge will be involved at these sessions to oversee the operation and sign any orders. A statistical record will be kept of the disposition of the pre-trials. If successful, an additional 9 two-week programs would be needed to deal with the backlog list.

Assuming a running trial list for those cases that will not or cannot settle, the proposal predicts that the backlog can be eliminated by the end of 1995, if its recommendations are accepted.

We believe that the mediation initiative, involving judges and senior members of the Bar and presently being experimented with, should continue.

Toronto

A backlog elimination team made up of judges, lawyers and administrators is developing and implementing a plan to attack the backlog. Techniques will be agreed upon and dates set for implementing each stage of the attack. The techniques under consideration include:

  • Settlement blitzes by lawyers, with senior lawyers acting as mediators/facilitators;
  • Settlement blitzes by judges;
  • Use of ADR for cases suitable to mediation or arbitration
  • Implementation of a trial blitz, in April 1995, during which the court will suspend its usual business and focus on the trial of backlogged cases.
  • The implementation of improved trial scheduling practices including: the adoption of consistent and stringent adjournment policies; the establishment of optimal trial capacity of the court; the separation of long trials from shorter trials, by list, and the establishment of "disincentives" for the behaviour of counsel which is counterproductive to ensuring firm trial dates.

Central East

The proposal of the Advocates' Society Central East Region Subcommittee identifies the need to clean up the list to determine how many cases on the list are settled or are actually "ready". It is suggested that this could be facilitated by asking counsel to file updated pre-trial memoranda. The backlog of civil cases needs to be shared throughout the Region equally. Two centres where the criminal caseload is not as severe could be used to experiment. One could try a "fixed trial" system. Case management could be attempted. Civil sittings from some courts could be cancelled and transferred to other courts. The following year, the cancelling court would be the beneficiary of the extended sittings. The civil rules should be amended to allow cases to be transferred to other locations where court and judge time may be available. Judicial downtime arising from criminal pleas at the last moment could be used to try all cases identified as requiring less than two days; a list of these would be established from pre-trials. This would require coordination and cooperation of counsel to be ready on relatively short notice. Another experiment could be to assign cases "to the week of". Costs sanctions need to be made more effective in curbing counsel's waste of the court's time. Pre-trials must continue and the Bar can provide private pre-trials. Masters should be reinstated to free up judge time.

Central West

The Advocates' Society Civil Litigation Task Force Subcommittee in Central West Region reports that there is no serious backlog problem in the Region, except in Brampton (Peel) where, as noted at the outset of this Chapter, the growth of the backlog in recent years has been startling. The Subcommittee recommends that the following steps be taken immediately to deal with the Peel backlog situation:

  • assignment of more judges to Peel and the prompt filling of vacancies as they occur;
  • requiring litigants to move to other centres, such as Milton or Orangeville, where lists are more manageable, to have their cases tried;
  • instituting a mini-trial process;
  • using senior practioners to conduct pre-trials;
  • Imposing cost sanctions for lack of preparation for pre-trials, failure to comply with undertakings or lack of disclosure at pre-trial;
  • utilizing a trial audit system for family law cases;
  • transfer of staff to ensure that the support needed for additional trials is available;

We believe these backlog initiatives and programs should continue. However, we also recommend that a general backlog reduction program be devised for the Province as a whole, implemented in those areas where there is no existing program in place, and integrated with any existing programs.

12.4 The Elements of a Successful Backlog Elimination Program

The elements of any successful backlog elimination program have already been discussed. In summary they consist of,

  • identifying the cases which have been pending for more than 9 months;
  • shaking out those cases to determine which of them actually remain to be sent for pre-trial and/or trial;
  • pre-trying those that do; and,
  • providing the certainty of available judicial resources and facilities to try the remaining cases which do not settle after a proper pre-trial process.

While elements (a) and (b) are essentially matters to be dealt with locally, and elements (c) and (d) may be as well, we believe that the magnitude of the backlog problem in the major centres across the Province requires a province-wide approach to eliminating it.

RECOMMENDATION: We recommend that two dedicated teams -- a trial team, and a pre-trial/settlement team -- be created for purposes of pre-trying and trying, the backlog cases in the court centres around the province where this is needed most. We recommend that the trial team be drawn from existing judicial resources.

We recommend that the pre-trial/settlement team be comprised of a group of recently retired judges and senior members of the bar.

The Trial Team

A team of 8 to 10 judges from across the Province should be created for the express and dedicated purpose of trying the backlog cases that remain to be tried after the identification, shake out and pre-trial phases of the program.

We recognize that this proposal will place a great strain on the utilization of judicial resources because in reality there is little, if any, slack available in the allocation of those resources at the present time. Judges who are assigned to the backlog team will not be available to perform other tasks. This may well make the judiciary's ability to keep up with its current workload unachievable.

However, elimination of the backlog, which is the greatest single source of delay in the system, warrants priority, in our view.

It is not our role to suggest to the Chief Justice and the Senior Regional Justices how and from where judges will be withdrawn from existing duties and dedicated to the backlog team. Such decisions fall squarely within the ambit of the judiciary. However, we believe that an equitable sharing of this burden as between the Regions is important.

The Pre-Trial Team

Currently, judicial resources simply do not exist to enable the creation of both a backlog trial team and a backlog pre-trial team from that source. The assured availability of trial judges to conduct trials when the cases are scheduled to be tried is essential. Therefore, the pre-trial team must be assembled from other sources.

There are a number of possibilities, but the one we favour involves tapping into the existing pool of recently retired judges in Ontario, if they can be persuaded to participate. Recently retired judges have a great deal of experience, and their reputation still carries with it the mantle of being a judge. These characteristics make such persons ideal for the process of pre-trying and preparing a case for trial. Where necessary, this pool would be supplemented by senior members of the Bar.

RECOMMENDATION: We recommend that a fund be created for the purpose of retaining a group of recently retired judges, and senior members of the bar if necessary, to act as an advance pre-trial/settlement conference team for the backlog cases.

This team would work with the backlog trial team in developing and carrying out a plan to attack and eliminate the existing backlogs across the province. Its members would pre-try, mini-try, mediate and make all reasonable efforts to settle those cases in order to avoid the need for trials. For those cases which need to be tried, and which cannot be settled, they would conduct trial management conferences in order to prepare the case for as short and effective a trial as possible.

12.5 Some Considerations for the Federal Government

Prompt Filling of Vacancies

There is another factor which is important in this context. We have mentioned it before. Presently in Ontario, all available judicial resources, including the supernumerary judges, are committed to "front line" tasks. "Reserves" are a non-existent luxury, and accordingly there is very little room to manoeuvre in finding judicial resources to perform special tasks. As a result, it is absolutely imperative that the Federal Government fill vacancies forthwith as they occur.

Delays of 6 months or more are not uncommon in the appointment of new judges to fill vacancies which have arisen. Six months may not appear to be a long period of time, however, the failure to fill just two vacancies for a six month period deprives the Court of the equivalent of one full time judge for a year. A great deal can be done by one full time judge, in one year. Such a loss is felt in any Region, but in Regions with fewer judges the loss is particularly burdensome.

Very few vacancies occur unannounced in advance. With the screening process which the Federal Government has put in place to ensure that a pool of qualified candidates is available for appointments. There is no reason why vacancies cannot be filled virtually simultaneously with their occurrence. For the system to function adequately, in these days of scarce resources, this must be done.

RECOMMENDATION: Accordingly, we recommend and urge the Federal Government of Canada to respond promptly by appointing new judges to fill judicial vacancies immediately upon their occurence.

"Anticipatory" Appointments

There is a second way in which the Federal Government could assist in ensuring that there is a full complement of judges to conduct the Court's business. It has been referred to as the "anticipatory appointment".

The "anticipatory" appointment involves the filling in advance of vacancies which will occur in the reasonably foreseeable future because of judges becoming eligible to elect supernumerary status. Instead of awaiting the day when such eligibility occurs, the appointment is made now.

This suggestion requires those judges who will choose "supernumerary" status to notify the government well ahead of the time when they can do so, and it does entail additional short term costs to government to make such appointments. However, its strength is that it creates an additional supply of judges on a short term basis, and it does not require a permanent addition to the number of federally appointed judges allocated to the province of Ontario.

It is a suggestion which, in our view, is particularly apt to alleviate the immediate pressures caused by the inordinate backlogs currently clogging the civil justice system in the Province.

To take one example only, there will be 6 judges in the East Region entitled to elect supernumerary status over the next 3 years. Ottawa is a centre where backlog pressures are particularly intense. If anticipatory appointments were to be made in that Region, there would be three additional judges who could be assigned to deal with backlog cases.

While such a measure would require additional immediate expenditures by government, it would save money in the long run. The backlog, and all of the direct and indirect costs and strains which are embedded in it, would be eliminated. Furthermore, it would be eliminated without the need to draw judicial resources away from other civil matters or from criminal matters. In this latter regard, we note the reappearance of signs that the criminal lists in some quarters are beginning to approach pre-Askov levels. Should this possibility become a reality there will be pressure to transfer judicial resources from the civil side to the criminal side, a re-allocation of resources which can only make the already grave condition of the civil justice system even worse. On the other hand, if no such re-allocation is made, criminal cases will be stayed. There will be a public outcry at this. New additional permanent judges would have to be appointed, at great long term cost to governments.

RECOMMENDATION: We therefore recommend that the Federal Government consider the making of "anticipatory appointments" as a method of increasing temporarily the judicial resources available, in order to create a pool of additional judges for attacking the backlog problems across the province.



Footnotes:

[45] Report of the Advocates' Society Civil Litigation Task Force Subcommittees for Central West and East Regions. October 1994.

[46] Court Statistics Annual Report, 1993-1994, Ministry of the Attorney General, Program Development Branch.