By: Dr. Gerard Kennedy
In a recent article to be published in the Canadian Bar Review, I analyzed whether procedure in the Federal Court and Federal Court of Appeal (the “Federal Courts”) is more efficient than in many large superior courts and thus is better suited to facilitating access to justice.
Through a combination of analyzing rules and case law and interviews with judges and lawyers, I concluded that there is significant truth to the hypothesis that Federal Courts procedure is indeed quicker than what is seen in many provincial superior courts. This comparative lack of delay is, other things being equal, a boon for access to justice. This may give lessons to the procedure in many provinces and/or inform litigant choices as to whether to commence litigation in the Federal Court or a provincial superior court in cases of concurrent jurisdiction.
By way of illustration, one litigator stated that, “You can realistically expect to go to trial within a couple years of starting your case” (his words). He suggested that this would be completely unrealistic in the Ontario Superior Court. Another litigator added that “that it would be very unusual to choose to proceed in an intellectual property matter in a superior court instead of the Federal Court, due to speed and expertise” (my summarizing in the article).
After giving an overview of particularly distinct aspects of Federal Courts procedure (including regarding case management, summary procedures, orders concerning problematic litigants, enforcement of procedural rules and deadlines, and judicial specialization), various reasons for the difference in efficiency in court procedure are considered.
It ultimately concluded that Federal Courts’ procedure’s efficiency is due to a confluence of factors. Some of these are not realistically applicable to other jurisdictions, such as:
- a relatively small court (not unlike Manitoba, which also appears not to suffer from delays seen in larger provinces); and
- confined subject matter jurisdiction.
But other lessons are very applicable, including:
- a friendly but strict registry;
- intensive case management, particularly by associate judges who are trained in mediation;
- availability of associate judges on short notice for genuinely urgent matters, which one litigator described as “dial a judge” (her words) and another said that “you can get a judicial official on the phone […] if it is genuinely urgent, they will help you and they will move things along. […] You can usually get [an associate judge] on the phone within a day or two and say look, we’ve hit a conundrum here” (his words);
- enforcement of procedural rules, which are often “honoured in the breach” (as noted in several cases) in other courts, with one litigator describing “hav[ing] to follow the rules in the Federal Court” (her words) as the primary reason Federal Courts procedure is quicker than Ontario Superior Court procedure; and
- judicial specialization.
While the article is largely praising of Federal Courts procedure, areas of potential improvement are considered, including court composition, the integration of civil law; and limitations due to confined subject matter jurisdiction (which is a double-edged sword for access to justice). But by and large and in the main, the Federal Courts have gone a long way to realizing many of the benefits that can accrue to access to justice due to the appropriate use of procedural law.
The views expressed in these blogs do not necessarily reflect the views of the Faculty of Law at the University of Manitoba and should not be construed as legal advice or endorsement.