Our Access to Justice Crisis Needs Solutions: Could Med-Arb Be An Answer?

  • November 25, 2022
  • Ryan A. Murray

In 2021, the Ontario Court of Appeal acknowledged that the Ontario civil justice system faces an unprecedented crisis.[1] Our constitution mandates that criminal cases must be addressed within a particular timeframe. Family cases, which often feature child access and other time-sensitive issues, tend to have the next level of priority. This leaves civil lawsuits, including many personal injury lawsuits, to linger for years without resolution. The COVID-19 pandemic has made these access to justice problems even worse.[2]  The Courts have been grappling with this issue in various ways.  Solutions have included conditional striking of jury notices[3], multiple pre-trials with a “strong focus” on settlement and “trial blitz” sittings where several dozen cases are asked to be ready for trial despite the court only having capacity to see few, if any, cases proceed beyond jury selection.

Our statutory accident benefits (“SABS”) system is in an equally difficult state. A recent letter to the Attorney General from the Ontario Bar Association’s insurance section chair pointed out “the parties often wait months before a case conference can take place, and once a case conference does occur, the parties can find themselves waiting additional months, or even more than a year, before a hearing will take place – even if the hearing is in writing,” The letter goes on to say that “The parties must then often wait for weeks or even months before a decision is provided by the adjudicator who presided at the hearing.”[4] It appears that the Licence Appeal Tribunal has too many matters before it and not enough current resources to clear the backlog in a timely way.

Many participants in the civil justice system have been wracking their brains to find additional solutions. One available solution may be to borrow the concept of “Med/Arb” from family and labour law.  In a Med/Arb, the parties agree to participate in a mediation and, if an agreement is not reached on all issues, the mediator will act as an arbitrator and decide the remaining issues.[5]

There are several benefits to this solution. First, the parties can choose their mediator/arbitrator and ensure that they are using a subject matter expert. We have all experienced a situation where a well-meaning judge, with no experience in a particular area, makes a hash of a decision and we are off to the Court of Appeal. This can even occur in an accident benefits setting as many adjudicators take time to get fully up to speed on the byzantine world of statutory accident benefits. This problem can be avoided using Med/Arb with a subject matter expert. Second, parties will receive the binding decision in a timely manner. When the parties are paying for a decision, my experience is that a decision tends to be delivered within thirty days rather than six months or more with SABS hearings or non-jury trials. Third, the process can be tailored to the size of the dispute. The parties can agree to proceed with all submissions in writing or with all evidence in chief by way of affidavit and cross-examinations conducted via Zoom. This will save time and cost and, with an experienced decision maker, should not sacrifice quality. Fourth, the cost in a Med/Arb is often less costly and quicker than a regular arbitration, since the arbitrator is already familiar with the case, having acted as mediator. Lastly, the parties can choose the issues that they want to submit to arbitration if the mediation fails. It does not necessarily have to be all the matters in dispute. In some cases, it may make sense to arbitrate only the issue of catastrophic impairment, entitlement to income replacement benefits, tort liability or particular heads of damages.  This can reduce the number of disputes and leave the parties to settle or go to trial/adjudication on the remaining streamlined issues, if necessary.

Some may say that arbitration is never used in personal injury and the right to a jury should be sacrosanct. In fact, several complicated medical negligence cases have proceeded by way of arbitration. If it is good enough for the experienced lawyers working in the medical negligence bar, shouldn’t arbitration be something that all personal injury lawyers consider as a solution? In addition, failure to make changes because “that is the way we have always done things” is an attitude that has led us to the situation where we currently find ourselves. While a jury trial remains the gold standard for adjudication of a case, our current situation of multi-year delays with standard car accident injury cases taking up to 10 years to get to trial, is simply not sustainable.

I encourage everyone to think outside of the box and work together to help us resolve the backlog of personal injury cases in Ontario. Med/Arb is one tool that the parties can use to obtain fair, timely and affordable justice while assisting the legal system, as we attempt to modernize and improve our civil litigation system.

About the author

Ryan A. Murray is a lawyer, mediator and arbitrator at Murray Mediation Services. He primarily works mediating cases involving injury and insurance issues. From 2006-17, he worked as an associate and partner at Oatley Vigmond Personal Injury Lawyers LLP. Prior to that, he worked as an insurance defence lawyer at Rachlin & Wolfson LLP. Ryan holds an LL.M. (ADR and Civ. Lit.) and LL.B. from Osgoode Hall Law School. He has been recognized as a Certified Specialist in Civil Litigation since 2014. He has also previously been recognized by the Canadian Legal Lexpert Directory® and Best Lawyers in CanadaTM  for his work as a personal injury lawyer. He is a past board member of the Ontario Trial Lawyers Association (OTLA) and past chair and vice-chair of the New Lawyers Division of OTLA. Ryan is also a past chair of the board of directors of the Brain Injury Society of Toronto. He encourages you to follow him on LinkedIn where he regularly posts relevant case summaries.

 

[1] Louis v. Poitras, 2021 ONCA 49 (Ont.C.A.)

[2] Da Silva v. Scott et al., 2021 ONSC 5862

[3] E.g. Solanki v. Reilly, 2020 ONSC 8031, Weaver v. Clunas, 2021 ONSC 2364, Barnim v. Mitchell, 2021 ONSC 2914 and Hardy v. McAuslan, 2021 ONSC 4258.

[4]Katrina Eñano , “Shortage of tribunal adjudicators delaying accident benefit disputes: Ontario Bar Association”, Law Times, January 31, 2022. Accessed October 18, 2022, https://www.lawtimesnews.com/practice-areas/insurance/shortage-of-tribunal-adjudicators-delaying-accident-benefit-dispute

[5] E.g. van Rhijn v. van Rhijn, 2020 ONSC 8032 (CanLII)

Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.