Wednesday, February 20, 2013


This is inevitable: a flood of litigants with questionable claims avail themselves of Judaical review remedies, assisted by taxpayer-funded Legal Aid plans and at no cost to themselves. Is it any wonder that everyone seeks Judaical review? The Court's potential solutions are sensible, but I would argue that the following should be considered too: change costs awards to make it easier for the court to penalize frivolous litigants or those with flimsy cases; impose higher filing fees to fund and retire the deficit; and impose a higher bar in leave applications.

Swamped Federal Court seeking relief from pressure

By Cristin Schmitz, Ottawa

The Lawyers Weekly
Vol. 32, No. 39 (February 22, 2013)


The Federal Court is thinking of offering litigants a new option of a quicker hearing followed by a speedy oral decision, says its chief justice Paul Crampton.

In a wide-ranging exclusive interview about what lies ahead for the national trial court in 2013, Chief Justice Crampton revealed an "out-of-the-box" idea the court believes holds potential to improve service, while helping to contend with deep budget cuts and a burgeoning backlog.

He wants to discuss with the bar the idea of giving litigants the option of an expedited sessions-court-style procedure. Instead of people waiting to be scheduled for the usual two-hour oral hearing for judicial review and a written decision weeks or months later, litigants could elect to follow a speedier route with a half-hour or 45-minute hearing. "And the understanding would be that they would get an oral decision, or a short written endorsement?--?which is what the [provincial] superior courts and the provincial courts tend to do a lot of," Chief Justice Crampton said.

In addition to offering litigants a faster result, judges sitting in sessions courts could decide five or more cases a day, instead of hearing just two, and write their judgments later.

That route might appeal to people seeking reviews of decisions denying them permanent residence visas, for example, he suggested. "They hopefully will avail themselves of it, and hopefully it will alleviate the backlog, at least to some degree."

That fast-growing backlog is a major challenge for the 55-year-old chief justice, a one-time leading competition lawyer. His enthusiasm is evident as he speaks about the court whose leadership he assumed a little over a year ago.

Last year, the court "came within a whisker" of 13,000 filings?--?a record?--?up from 9,800 in 2011 and 7,700 in 2010, he said. Most of the growth was in non-refugee applications; for example, permanent residence visa applications from outside the country.

Meanwhile, the court's 30 judges, five supernumeraries, and six prothonotaries cranked out more decisions than ever, and did so without expanding the time between when an application is filed and judgment.

"But because we're not keeping pace with the more significant increase in filings, the overall inventory is increasing," Chief Justice Crampton said. "So, for example, on the refugee side, the inventory [backlog] increased by 25 per cent."

The expanding workload, caused partly by recent federal immigration and refugee amendments, is taking a toll on the court's itinerant judges, who travel two and sometimes three weeks a month, he said. "I don't think I can ask people to work any harder than they are currently working, without running a greater risk of absenteeism, of people falling sick."

The court is working on innovative solutions to cut its backlog while providing speedier and more efficient service, but additional judges and prothonotaries must be part of the equation, he said.

Ottawa is expected to appoint judges to two new posts on the court in the coming weeks. "If I see the backlog continuing to climb, or I see that we're not able to dig out, I'll be trying to make the case for more appointments."

An urgent request for two more prothonotaries remains unfulfilled, however.

"There's six of them, but the number and complexity of matters has been increasing over the years and they are treading water," Chief Justice Crampton said. "They are extremely busy, and so we do need more resources on that front."

The heavy workload of the prothonotaries is aggravated by the refusal of successive governments over the past 10 years to improve their compensation, pensions and other benefits, which takes its toll on morale, he said.

"The court would very much like to see progress on these issues. I think, in fairness, you have people who are working extremely hard serving their country to the best of their ability?--?above and beyond the call of duty, I would say, in the case of each and every one of them?--?and I'm not seeing much appetite to address issues that are very important to them[...]so I'm hopeful that we'll see some progress on these issues and that we can get beyond this once and for all, because it is just extremely disruptive."

In the current climate of austerity in Ottawa, the Courts Administration Service (CAS), which provides registry services to the Federal and three other courts, also faces resource challenges.

It has a roughly $3-million deficit in this fiscal year that is likely to balloon in the coming year.

If additional funds are not forthcoming, the court will have to postpone critical initiatives to modernize its technology and improve its security "and our ability to meet our mandate is going to be compromised," the chief justice said.

Three successive rounds of budget cuts "are cutting into the bone," he warned. There are not enough registry officers and other staff. "We've got about 1,000 cases that[...]are down in the registry, either waiting to come up, or to be processed by the registry."

To conserve scarce resources, the court plans to implement measures to clamp down on the 1 to 2 per cent of litigants whose frivolous and vexatious cases consume "an enormous amount" of judicial energy?--?"the equivalent of one, or two, or maybe even three judges' time," the chief justice said.

"There are people who have had their seventh, and eighth, and ninth day, in court here, while there's other people in line waiting to have their first day, and it's just not right."

He noted the judges began work last year on a five-year strategic plan that will culminate this fall in specified "goals and measurables."

They agreed they should focus on improving people's access to justice, modernizing the court, and improving how the court delivers its services?--?which are still largely paper-based.

In the wake of a study by Prof. Sean Rehaag indicating that individual Federal Court judges grant leave to appeal to failed refugee applicants at widely different rates, the judges also discussed their various approaches last year, the chief justice said.

"We recognize there is this issue," Chief Justice Crampton said. "I think the unspoken hope is that when we next see the data [for 2013 and beyond] there will be a reduced variation."

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