• Cameron Fiske

Justice Delayed...and the Suffering of Judges

For all the suffering that comes with being a lawyer, I sometimes wonder if it is, in fact, Judges who suffer the most.

Of course, if you love the law, as I do, the suffering is not so bad. I would assume that the same is true for Judges. If they love the law then the long hours and pressures must be doable. However, one cannot deny the extraordinary pressure put on Judges.

Judges must get each decision right, and their decisions always have to be well-reasoned and well-drafted. There is no room for typographical errors or mistakes. A reversal by a higher appeal court is costly. It is for this reason that I write with some sympathy on the subject of delayed court judgments.

I appreciate that Judges work very hard and often do not have much in the way of resources to deal with congested dockets. I write mindful of Superior Court Chief Justice Heather Smith’s comments at the Opening of the Courts ceremony last September; an event that I attended. The Honourable Chief Justice Smith highlighted the need for more Judges to be appointed in Ontario. The Honourable Regional Senior Justice Peter Daley in Peel Region raised similar concerns in November 2018, i.e. that there is a significant need for more Judges to be appointed to help assist with crowded civil and criminal court dockets.

Having said all of that, a client of mine has currently been waiting over eleven months for a decision in a case that may well not be rendered for a few weeks or months yet.

I am sympathetic to the reason for the delay. However, justice delayed is certainly justice denied and it has been difficult for my client to wait so long for this decision. It puts pressure on the client who is waiting to hear from a court or tribunal and it puts pressure on the lawyer who has to tell the client to be patient.

No one wants to put pressure on the Judge or Adjudicator to render the decision as I would imagine that anyone familiar with the court system is aware of just how difficult it is to write a well-reasoned and detailed judicial opinion. Not to mention the fact that you do not want to irritate the very person who will decide your case.

All of this leads me to some antidotes below about lengthy wait times for decisions. Before we get to that, technically in Ontario, the Courts of Justice Act requires that all judicial decisions be rendered within six months of the date when the decision has been taken under advisement. Extensions can be granted by a Regional Senior Justice in cases that are of significant complexity, as is understandable. Several difficult decisions of the Court of Appeal for Ontario or Supreme Court of Canada take more than six months, again, for very understandable reasons. The recent tobacco appeal involving billions of dollars took more than two years to get to the exceptionally lengthy decision recently rendered by the Quebec Court of Appeal. Again, that delay was entirely understandable and reasonable given the context.

Yet, the question remains: have there been any outrageously long waits for decisions? There certainly have been. By no means are delays confined solely to Canada when it comes to waiting for judges to render opinions.

In fact, in a 2004 article by the New York Times¸ reporter named Benjamin Weiser wrote of one Federal Judge who once took three years to render a decision in a benefits case involving a prisoner with H.I.V. By the time that the decision was rendered, the prisoner had died. The question was what to do about the problem. Some claimants who had to wait several years for this particular judge to render an opinion actually petitioned the higher United States Court of Appeals for the Second Circuit to compel said Federal District Judge to render a decision. Presumably this must have been done by way of an extraordinary writ such as mandamus. However, once the petition was filed the Judge would often rule.

There have been cases of even longer delays. One Judge took nine years to render a decision in an admiralty case. That Judge, of the Manhattan Supreme Court, had been on the bench for over 25 years by the time he received an official sanction by the Court of Appeals for New York for delay. Admittedly, the Judge had provided extraordinary service over the span of his career, including working many weekends and long-nights. However, by the time of the discipline hearing in 1990, too many decisions had remained under reserve for longer than one year, with the worst example being the aforementioned decision that had been pending for nine years. Naturally, such delays were unacceptable and they rightly warranted some form of censure, as was in fact imposed by New York State’s highest appeal court: See Re Greenfield 76 N.Y.2d 293 (1990) (NY Court of Appeals).

In the end, while there may be many ways for governments to save on resources or cut corners, Judges are not one of them. Nothing is gained by having tired and overworked Judges on the bench. While justice delayed is justice denied, one cannot expect superhuman qualities from judges. As Judges already have the burden to be perfect in all of their decisions, the least we can do is make sure that there are enough of them so as to make it feasible for them to render a decision within the six months that are generally allotted by most courts throughout North America, and certainly by almost all courts in Canada. Quite frankly, more Judges benefit everyone.


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