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

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]