Its proper perspective

The report on delays

Richard McConomy, avocat

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In the month of January 1997, the Ad hoc Committee on Delays, formed by the Bar of Montreal with the collaboration of the Bar of Quebec, deposited its report concerning the study of delays in the Superior Court system in Montreal.

Me Richard McConomy

This report should be read in conjunction with the report on the future of the profession published by the Bar of Quebec in June 1996, and the Canadian Bar Association's report on systems of civil justice deposited in August 1996.

The report on the future of the profession calls for a change in culture by the legal profession in Quebec in order to adapt to the changing marketplace. One of the major recommendations called for a better use of technology in order to better understand both the economics of the practice of law, as well as the problems associated with a court system that does not produce in-depth statistical information concerning the justice system.

In the Canadian Bar Association's Task Force report, more particularly in recommendations 51 and 52 they call for the establishment of a national data bank and the creation of a system whereby all the data generated from local jurisdictions can be compiled and analyzed with a view of court reform, thereby profiting from the experience of the various regions of the country.

As we are all aware, on January 1, 1997, the new "fast-track" rules were established and the cases that are subject to these new rules will be moved quite rapidly through the legal system.

The sacrifices made in order to adopt this fast-track system are numerous. The system will involve strict delays, no discretion as to extensions on delays, no lessening of the recourses available during those delays through a telescoping of the time period in which preliminary issues must be settled and arranged, a defense deposited and subsequently an inscription made.

In this context, the Montreal Bar's report on delays will be of value for a number of reasons:

a) the report studies the often forgotten period of delay from the beginning of the action to the inscription and provides an analysis of 560 cases, at the Superior Court level where such a delay was evident;

b) l analysis of these 560 cases that is designed to measure the impact of the "fast-track" on delays, as well as the impact on the mentality of the profession;

c) the report will provide basis for comparison to create a profile of the cases that are not in the fast-track;

d) the report should lead to an examination of conscience by the profession as to our starting point for the change in culture which would make the system more aggressive between the issuance of the writ and the coming to trial.

As with any committee, there are always possible criticisms. Inadvertently or for lack of proper funding, the committee studied exclusively Superior Court files and did not study or concentrate on the problem of delays in the Court of Quebec, or in the numerous administrative bodies that render justice in our province. The second criticism of the report is that it may be too crisis-oriented. It seems to concentrate on worst-case scenarios by choosing only the worst files in order to create a shock effect. The report lists 16 major areas which could explain or are observed as being the source of delays. The overall observation is that we are in a system where there has been an excessive tolerance of non-performance, as to first, the delays found in the Civil Code of Procedure and, secondly, as to the imposing of a reasonable delay where one or other of the parties seems to be less enthusiastic about moving forward. The observation has been made that although the classic situation would be where the Defendant is not interested in moving forward with diligence, it appears that, more often than not, it is the Plaintiff who seems to have taken an action for strategic reasons and then will not move the action forward. The report also criticizes lawyers being overindulgent with one another and the courts supporting this overindulgence. The mentality of "I need a delay today, you'll need a delay tomorrow" seems to permeate the system. This, of course, should come as no surprise to anyone who has close-up experience with our legal system. If the report serves no other purpose than to provide the list of questions that should be asked during an exercise of case management in order to determine what are the sources of the delays in a civil file, the exercise will have been well worth the investment.

Overall, the report is highly satisfactory and should serve as a data base or a set of guidelines for case management. The study will also provide a starting point against which we will be able to measure the impact of those reforms which are already in place, such as the fast-track and the other reforms which are being proposed, including the use of alternate dispute resolution and various other necessary changes to the Code of Procedure.

The Council of the Bar of Montreal has approved the major recommendation on reform of the Code of Civil Procedure and has struck an ongoing committee that will be called the Committee on the Reform of Civil Justice.

As the Bâtonnier of Montreal, I would like to recognize the contribution of the following members of our legal community: M^e Jean-Jacques Gagnon, M^e Robert Mongeon, M^e François Fontaine, M^e Francine Fortin-Lacroix and Mr. Justice André Deslongchamps who sat on the committee, as well as the contribution of M^e Elena Munoz-Bertand, M^e Nathalie Roy and M^e Frédéric Letendre who provided the staffing and did the actual collection of data for the 560 plumitifs which were studied.

When the Committee on delays was originally struck, the Bâtonnier at the time, Jean-Jacques Gagnon, presided over the committee and following this tradition, the Bâtonnier for 1997-98, M^e Pierre Fournier, will preside over the Committee on the Reform of Civil Justice which has been formed.

Richard McConomy is bâtonnier of Montreal.

 

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