Thursday, May 06, 2010

James Morton: Ontario Litigation Has Become an "Elaborate Game of Chicken"

James C. Morton, a Toronto litigator, law professor and author of Morton's Musings law blog, on delays in Ontario civil proceedings, from an op-ed in today's Toronto Star:

[T]he real problem leading to delay is the uncertainty and hazard of trial. The costs of going to trial have vastly outpaced inflation. Despite judicial caution, judgments have increased in uncertainty and in amount out of proportion to the judgments of the 1960s. Moreover, trials have become very uncertain. Fifty years ago, principles of law changed slowly; today there is great unpredictability in what a court will do. The result of losing a case is commonly utter ruin and yet predicting the outcome of a case is almost impossible. As a result, litigation, rather than being a process designed to lead to trial, has become an elaborate game of chicken.

Neither side can risk losing a trial. As a result, cases tend to drag on as parties avoid trial. Attempts to settle, normally a good thing, become reasons to delay the actual hearing of the case. Lawyers unused to doing trials become even more risk-averse and look for all options other than going to trial. Thomas Jefferson’s aside, “delay is preferable to error,” is elevated into a principle of law and cases linger.

Read more: Fear of trial delays civil cases

- Garry J. Wise, Toronto

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