Can limited arbitration help alleviate institutional delay in Alberta?

The expression "justice delay is justice denied" is ever so true for civil litigation in Alberta, and I expect many other provinces in Canada.

Delay affects the quality of justice. Memories fade with delay, and unlike fine wine, they do not improve with age. It is inefficient in that case preparation must be repeated where there are long delays. Costs increase as a result. Parties are subjected to more stress and uncertainty when the outcome is delayed. None of these things serve to engender confidence in the rule of law and the civil justice system.

The Scope of the Problem?

In Alberta, there have been approximately 200,000 active cases per year between 2016 and 2021. Of these 110,000 are civil actions, The Queen Bench Act authorizes 74 Justices, but only 68 are appointed. There are six vacancies. The wait time to secure trial dates for trials of 5 days or more is in excess of two years from the time the parties certify that they are ready to go to trial. The time it takes from case start to certification of readiness for trial is the longest period in the civil process. In many cases greater than two years.

Procedural matters in this time frame (from suit commencement to certification of trial readiness) are handled mostly by Application Judges. They are the gatekeepers for virtually all procedural decisions in the civil case process. In Alberta, there are currently six full-time and two part-time Application Judges to handle the procedural issues for approximately 110,000 active cases. The delays as a result of this understaffing comprise a significant part of the delays in the system. Delays in scheduling time for the resolution of procedural matters can be up to 10 months. Practically when procedural matters are outstanding, litigation tends not to proceed.

What can lawyers do to alleviate these problems?

While lawyers can advocate for the Federal Minister of Justice to fill the vacancies, under the Queens Bench Act, the process and outcome are largely out of their control. 

Alberta currently has six full-time and two part-time Application Judges (formerly called Masters), handling procedural issues for some 110,000 cases. They are appointed by the provincial government.

Clearly, more application judges are needed, but again, that is not something that is within the control of lawyers, and as matters currently exist, I do not see much political or economic will by the provincial government to rectify this problem.

What, then, can lawyers do that is within their control?

Clearly, more cooperation to try to resolve procedural issues would help. It is a pipe dream; however, to expect that parties adverse to each other are going to have universal Kumbaya moments, such that there will be no disagreements on matters of process. In short, some disputes simply need third-party resolution.

However, using the court scheduling process takes too long and costs too much; as a result, I would suggest litigants and their counsel seriously consider utilizing limited procedural arbitration to decide procedural impasses more quickly than can be done under the current institutional organization.

Experienced litigation lawyers skilled in dealing with procedural matters, are available to decide these sorts of disputes. While they will charge a fee, the cost savings coming from alleviating the additional costs associated with long delays will more than make up for the fee. By using limited procedural arbitration, the parties can choose to limit and expedite their appeal rights entirely or as limited by the Alberta Arbitration Act. The parties can limit the costs of procedural arbitration by limiting or even forgoing the need for written reasons. In many procedural disputes, the parties most often simply need an answer and detailed legal reasoning supporting the answer is unnecessary in many cases. If the parties, by their own choice, use binding arbitration for procedural matters, a significant portion of the delay in our civil justice system can be resolved.

This suggestion of limited procedural arbitration is neither totally novel nor is it a panacea for the institutional delay in our civil justice system. It is a stopgap measure to allow parties to advance their case in a more timely matter. The bigger picture of solutions to the overall problem of institutional delay must be considered by all of the participants in the system.

In the interim, think a bit outside the box and use arbitration to settle procedural disputes.