Going Through the Motions
Cases and reports for over a decade have lamented the ‘motions culture’ that remains prevalent on the Toronto Region Civil List … Motions are being scheduled before the Associate Judges in this region approximately eight months from now. Long motions before a judge here face the same backlog. Short motions can be heard in four months or so.”
Justice Frederick Myers, November 2021.
(Innocon Inc. v. Daro Flooring Constructions Inc. 2021 ONSC 7558)
The word “motion” itself connotes movement and change, yet too often motions feel like impediments to the progress of a case.
As I write this, I’m waiting for opposing counsel to schedule a 9:30 for the purposes of scheduling an allegedly urgent motion that was first threatened over a month ago. The intervening weeks have seen a Civil Practice Court (CPC) attendance, a transfer to the Commercial List, and dozens of e-mails, but no actual notice of motion — let alone an affidavit. All this in a case where pleadings have yet to close, almost a year after they were supposed to.
By number, the majority of my court appearances are spent on scheduling matters. Trying to explain CPC to the non-litigators in my life leads to jokes about the committee on committees having a meeting to decide on an agenda for its agenda-setting meeting.
And motions don’t just gum up individual cases — they cause systemic delays, as noted by Justice Meyers.
That eight-month delay for a hearing date seems excessive, until you look at the numbers. In 2019 (the last full year unaffected by COVID-19) there were 72,801 scheduled civil motion hearings in the Ontario Superior Court of Justice. Not accounting for holidays, there are 260 workdays a year. That would mean 280 hearings a day. Again, this is only civil list motions. All the other work the court has to do — trials, applications, all family and criminal work, etc. — is on top of that.
However, we also know that not every motion scheduled is actually heard. Some motions moot themselves. Others settle as the parties get to see the respective merits of the other side’s position through affidavits and cross-examination. In 2019, there were only 54,521 motion hearings of out the 72,801 that were scheduled. Still, assuming that these were all short motions (they weren’t) and that a judge can hear four short motions a day (they typically can’t), it would take 50 judges, sitting every day, and doing nothing but hearing motions, to deal with this case load. If you estimate the number of half-day motions at 40 per cent, and full day motions at 10 per cent, you end up needing 87 judges.
In the long term, something must be done to either reduce the number of motions, or increase the number of judges available to hear them.
However, the 18,280 motions that were scheduled in 2019 but were never heard also play a role in creating the months-long backlog for hearing dates.
First, it is important to note that 2019 wasn’t an aberration, and the percentage of scheduled motions (and applications) that go unheard holds relatively constant across time, at about 25 per cent for motions, and 33 per cent for applications.
These numbers come from the FRANK database, which tracks all events in litigation files. Importantly, the number of motions and applications actually heard and disposed of on the merits is lower than this table suggests, since an “event heard” includes day-of adjournments, which are unfortunately common.
Having such a high percentage of no-shows is a massive problem, because until the parties inform the court that the motion has settled, the hearing slot has to be treated as booked. And while I was not able to get data from FRANK, based on personal experience, the experience of colleagues and other anecdotal evidence, I’m comfortable saying that motions settle closer to the hearing date than they do the scheduling date — perhaps because cross-examination tends to prompt settlement. What this means is that a date may be booked months in advance, but released only weeks or days in advance — when other cases may not be able to make use of it on such short notice.
In the face of this data, courts could follow the practice of airlines and hotels by overbooking each date, expecting a certain percentage to drop out. Unfortunately, this will result in days when everyone shows up, and days when no one shows up — which is hardly efficient.
But another option exists: a small change to court practice that should both reduce the wait time for hearing dates, and the time and aggravation spent sparring over timetables.
I propose that the court start treating motions more like trials, with a “motions list” equivalent to the trial list. Parties should be required to complete all the preparatory steps — affidavits, examinations, factums — prior to being allowed to book a hearing date. This would reserve hearings for those motions where, after seeing all the evidence and the other side’s arguments, the parties still cannot settle and wish to proceed to a hearing. Based on the numbers from FRANK, that would mean 25-33 per cent fewer motions and applications being scheduled each year — a very significant decrease.
This would also cut down on last-minute adjournments (which take up valuable hearing slots). Finally, the existence of a fully developed record and facta will give parties and the courts a better understanding of how much time is actually needed for a hearing, or if a hearing is even necessary at all.
Moving to this model would also let us abandon the current practice of devising timetables backwards from hearing dates. Sparring over timetables is common, unbecoming of the profession and largely unnecessary. In a model where all steps must be completed before a hearing can be scheduled, there is no need to leave scheduling to the discretion and “co-operation” of counsel, and standard timetables can be promulgated: the moving party’s record to be served within X days of the notice of motion, the respondent’s record within Y days after that, and so on through to the end the process. Extensions and abridgments could be resolved between the parties on consent, or at a CPC. And of course, some manner of walk-in procedure would need to be retained for truly urgent matters.
Are there kinks to be worked out? Absolutely. It may take some trial and error to come up with a reasonable standard timetable. The authors of the rules clearly thought 20 days was enough to serve a statement of defence, and we all know how that works in reality. But the current approach is unsustainable, unproductive and ultimately unjust. There are too many motions being scheduled to have them all heard in a timely fashion. While measures to curtail the motions culture itself are needed, we should not ignore the role that scheduled but unheard motions play in creating these delays.
Under the proposed model, CPC attendances would be the exception, not the rule. A notice of motion is served. A standard timetable exists. Assuming neither party wants a deviation the other party doesn’t agree to, no CPC attendance is required. When all steps have been completed, the parties submit a hearing request along with all the materials. The court responds with the next available dates.
Fewer motions will be booked, fewer motions will be adjourned on short notice, and counsel will have fewer trivial matters to argue over. Scheduling motions only when they are ready to be heard should take 25 per cent of them off the court’s calendar, without sacrificing any party’s right to procedural or substantive justice.
It’s at least worth a try.
