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ROADMAP TO RECOVERY: ORIENTING PRINCIPLES FOR REDUCING COURT BACKLOG AND DELAYS

A Statement from the Action Committee

Our Committee exists to support Canada’s courts as they work to protect the health and safety of all court users in the COVID-19 context while upholding the fundamental values of our justice system. These mutually sustaining commitments guide all of our efforts.

ISSUE AND CONTEXT

Timely delivery of justice is necessary to promote access to justice and procedural fairness, even in times of crisis. While the Canadian justice system is no stranger to court backlogs and delays, the COVID-19 pandemic has increased pre-existing challenges by forcing courts across the country to postpone large waves of criminal, civil and family cases. As a result, judges and court administrators from across the country have identified, to different degrees, a need for courts to implement proactive and effective strategies in the short term to help move cases forward quickly, fairly and effectively for all involved.

Anecdotal evidence suggests that trial courts were disproportionately impacted by adjournments and delays. Most appeal courts were able to largely maintain their level of operations, while some, in fact, experienced a reduced volume of cases during the pandemic; this could be due, at least in part, to many cases being held up in trial courts and not advancing to the appeal stage. As such, while trial courts will be looking to address their current caseload and any anticipated floodgates of litigation that might arise from pandemic-related issues, appeal courts may wish to plan for a possible surge of cases in the near future.

While longer-term reduction of delays might involve broader considerations relating to legal reform, institutional and technological resources, and alternatives to formal litigation, courts may achieve important efficiencies within existing frameworks by promoting a culture shift amongst all justice system participants in the shorter-term; such efficiencies may in turn alleviate some of the legal, institutional or resource-related challenges initially identified.

As such, this document outlines orienting principles and practical considerations courts may wish to consider in planning or refining their own strategies to reduce backlog and delays as court operations gradually resume.

This non-prescriptive guidance focuses on immediate strategies that could be implemented within existing resources and legal frameworks to control or alleviate backlog and delays in cases currently before the courts. It is adaptable to various types of matters, including criminal, civil and family cases, and seeks to foster ongoing discussion and innovation while promoting flexibility as courts continue to respond to, and emerge from pandemic-related impacts on their operations.

Importantly, this guidance does not seek to: replace or guarantee compliance with applicable law or court rules or practice directions; examine the quantitative or qualitative impact of the pandemic on court delays and the resulting impacts on the justice system and its participants; assess the reasonableness of any court delays or prevention or mitigation measures adopted or adapted in response to the pandemic; or interfere with the discretion of judges who are responsible for the administration of justice in their respective courts or jurisdictions. A number of factors may legitimately affect each court’s individualized approach, including applicable legal frameworks, evolving public health measures, availability of technology and other resources, and the particular needs of local communities.

KEY CONCEPTS DEFINED

While definitions may vary slightly from one jurisdiction to another, for the purpose of this document, the following terms should be flexibly interpreted as follows, unless the context indicates otherwise:

  • “Case” generally refers to a specific file brought before the court and involving opposing parties, such as R. v. Accused (criminal), Spouse v. Spouse (family), or Complainant or Applicant or Plaintiff v. Defendant (civil).
  • “Backlog” generally refers to a higher number of cases coming into the court system than the number of cases resolved during the same period.
  • “Delays”, depending on the context, may refer either to 1) the amount of time it takes to advance a case through a given level of court (e.g. trial or appeal court) from the first appearance to the final disposition, or 2) factors or events that cause a case to take longer than reasonably expected under the circumstances.
  • “Judges”, depending on the context, may include justices, justices of the peace, prothonotaries, and others who carry out similar judicial functions.

ORIENTING PRINCIPLES

In tackling court backlog and delays arising from the pandemic, there is no single, quick-fix solution: rather, courts may wish to consider a multi-faceted strategy that combines all or some of the following principles and areas of focus, in order to maximize overall effectiveness.

Overarching Principles

When designing and implementing any strategy to reduce court backlog and delays, the following principles may help to promote an effective, user-centred and needs-based approach:

  1. Using change leadership and management strategies to promote a culture shift
  2. Addressing the diverse needs of justice system participants
  3. Measuring and tracking delays and backlog to assess progress and effectiveness
  4. Promoting the accountability of parties and their counsel
  5. Promoting and structuring multi-stakeholder collaboration

Operational Principles

The following principles focus on specific operational areas that present opportunities to optimize processes and reduce backlog and delays in practice:

  1. Implementing early and ongoing, robust and consistent case management practices
  2. Promoting early judicial or alternate dispute resolution
  3. Optimizing scheduling practices
  4. Eliminating unnecessary court appearances
  5. Optimizing case flow processes and eliminating administrative inefficiencies
  6. Sharing or pooling of court resources

These overarching and operational principles are complementary and may sometimes overlap. They involve optimizing existing resources, processes and roles and responsibilities of various justice sector stakeholders. There is an overarching focus on allocating court resources proportionately to the relative complexity and importance of each individual case, while taking into account competing needs arising from other cases. The following principles may apply in a range of situations, and at different stages of a case.

1. Using Change Leadership and Management Strategies to Promote a Culture Shift

Similar to the experience throughout the pandemic, forward-looking strategies to address the court backlog and delays caused by COVID-19 will likely involve both major and rapid changes. In such situations, adopting a change leadership and change management approach is crucial to promoting stakeholder buy-in and preventing “change fatigue” that might otherwise jeopardize the successful implementation of any new or revised measures or processes.

  • “Change leadership” defines a vision for the future and guides an organization towards that vision.
  • “Change management” supports people through a planned change, by making sure they understand the reason for the change, have had appropriate input into it, and possess the required skills and knowledge to successfully operate as it is being implemented.

When designing a strategy to reduce backlog and delays, courts should define what they are seeking to achieve; understand where they are starting from; identify and prioritize options to achieve their objective; and identify who needs to be involved, and who will be affected. Building on a solid foundation is key: review existing processes to build upon what works and rethink what does not, rather than simply replicating inefficiencies in new contexts such as virtual environments.

At all stages, courts should include processes to allow affected stakeholders to voice their concerns beforehand—not just after the fact—and engage in solution-building as the process unfolds. Open communication that goes both ways, and being empathetic to people’s difficulties or frustrations, can go a long way. This iterative approach will ensure strategies are designed with the end user in mind, and make stakeholders more able and willing to adapt to new realities and operations. Starting small—for example with a regional pilot project—can be a useful way to monitor, evaluate and adjust a new measure before scaling it up or making it permanent.

For more information on change leadership and management in a court setting, see the Action Committee’s Orienting Principles: Leading and Managing Change in the Courts.

2. Addressing the Diverse Needs of Justice System Participants

The failure to foresee and proactively address the specific needs of different justice system participants may impede access to justice, disproportionately mobilize court resources on a day-to-day basis, and create unintended delays. As such, any strategy or measure to reduce backlog and delays should assess—and include solutions to address—the diverse needs of participants in order to achieve its objectives in practice. Particular attention should be given to the needs of self-represented litigants who must navigate the complexities of the justice system, and to various groups of marginalized individuals who face systemic barriers in accessing justice and court services.

Self-Represented Litigants

Self-represented litigants are often at a disadvantage due to their limited knowledge of the law, understanding of the legal system and familiarity with judicial processes. Accessible tools and proactive processes to inform and assist self-represented litigants procedurally at crucial stages of their case may significantly reduce the strain on court staff and minimize wasted court time. Conversely, the absence of such tools and processes may place a significant strain on court staff required to repeatedly assist individual litigants on the same issues, and may result in repeat adjournments to enable litigants to take the steps required to move their case forward.

Examples of proactive and effective tools to assist self-represented litigants include:

  • Up-to-date information in plain language, such as brochures, frequently asked questions and guides – for example, see the Canadian Judicial Council’s Handbooks for Self-Represented Litigants in Criminal Law, Civil Law and Family Law
  • Simplified or automated court forms with easy-to-follow, step-by-step instructions
  • Notices or practice directions tailored to self-represented litigants
  • Adapted case management practices for self-represented litigants
  • Pivot or navigator agents to assist self-represented litigants with certain processes

Other groups of interest

In additional to self-represented and marginalized individuals, communities with diverse needs might include underserved or remote communities, Indigenous Peoples, minority language communities, LGBTQ2+ individuals, or individuals living with a physical or intellectual disability, among others.

Understanding how each of these groups of individuals interact with the judicial system and what barriers they face is key to eliminating these barriers. For more information on the impact of the pandemic on some of these groups, and related challenges and solutions, see the Action Committee’s publications on the impact of the COVID-19 pandemic on Access to Justice for Marginalized Individuals; Restoring Justice in Northern, Remote and Indigenous Communities; Interpretation and Translation Needs of Court Users; and Access to Specialized Court Programs that support justice participants who suffer from substance abuse or mental health issues and other marginalization factors.

At all times—and particularly in times of crisis such as a pandemic—patience, empathy and flexibility should be shown toward all court users who may be facing anxiety, emotional strain or personal difficulties. These factors can affect court users’ conduct and, in some cases, impede their ability or willingness to participate in the court process. Effects may be especially severe on marginalized individuals.

Special considerations relating to technology

While the use of technology in court hearings and other court services can improve access to justice for some, it can impede it for others. For persons facing difficulties coming to court in person because of transportation, childcare, mobility, fragile health or anxiety issues, remote hearings and processes can facilitate their participation in the judicial process. On the other hand, persons who may not have appropriate access to, or be comfortable with, technology used in court hearings or processes may face additional barriers. These persons will need additional support to access and navigate technology, or in-person alternatives to ensure they can continue to have access to justice. These considerations should be embedded into any strategy or measure to reduce backlog and delays that relies upon technology.

3. Measuring and Tracking Delays and Backlog to Assess Progress and Effectiveness

Implementing standardized measurement systems and indicators to monitor the overall progression of different types of cases can help to identify jurisdiction-wide or local trends that might pinpoint the root causes or contributing factors of backlogs and delays. Such tools may help to understand the origin and scope of backlog and delays, and to monitor progress and outcomes as different solutions are implemented.

Evidence-based policies and decisions are key: by identifying potential problem areas requiring intervention, courts will be in a better position to select and prioritize measures tailored to these areas and to assess the effectiveness of any new or adapted measures. As such, in order to tackle delays and backlog effectively, courts could consider adopting: 1) a standardized definition of backlog and delays, and 2) measuring and tracking tools—such as electronic case management systems, pre-identified indicators of success, and processes to collect stakeholder feedback.

While systems and indicators may vary according to the needs of each individual jurisdiction, useful functionalities include the ability to

  • Monitor different types of matters within a general category—for example, by type of offence in criminal courts, or by type of claim in civil courts
  • Monitor average timelines and delays for different types of matters
  • Identify cases that exceed a certain delay and may need to be prioritized
  • Identify special needs from the outset—for example, flagging matters with self-represented litigants or those who require an interpreter, so that the court can proactively direct them to required information or services and allocate resources based on identified needs
  • Generate internal or public statistical reports with different levels of detail, depending on the target audience
  • Disaggregate data by different categories, for example by type of matter, by region, between urban and remote communities, or by specials needs of litigants
  • Collect qualitative data to help interpret or contextualize statistical data—for example, through stakeholder surveys or consultations processes

4. Promoting the Accountability of Parties and their Counsel

Judicial leadership is key to setting the pace of litigation and enforcing proper practices. In other words, judges play an important role in promoting the proper administration of justice by ensuring the parties not only comply with court rules and processes, but also act reasonably under the circumstances and respect their commitments to ensure each case progresses effectively. As officers of justice, counsel are required to facilitate the proper administration of justice, a requirement that is usually embedded in their rules of professional conduct and can be reiterated as needed. For self-represented parties, judges may need to clearly set out processes and expectations to facilitate this process and promote accountability, while demonstrating flexibility to achieve overall fairness.

Promising practices to promote accountability

Promoting the accountability of parties can be achieved in a number of ways. Promising practices include

  • Consulting with local bar associations before implementing new or revised rules, policies or practice directives that regulate counsel’s obligations, to promote acceptance
  • Requiring parties to abide by timelines and commitments made in writing or on the record
  • Setting realistic hearing durations and enforcing them subject to exceptional circumstances
  • Placing the onus on parties to inform the court in advance—within a specified timeframe and process—of any circumstance that may lead to a cancellation, postponement, or change in duration of a hearing, and to substantiate any requests for adjournments or other applications
  • Subject to procedural fairness, refusing adjournment requests that are unsubstantiated, untimely, repetitive or result from a lack of preparedness
  • Clearly outlining processes and expectations for self-represented litigants, and directing them to the appropriate resources or services –
    • For example: set a timeline for the litigant to contact legal aid, inform them specifically on what steps to take, explain the potential consequences of not doing so within the set timeframe, ask them to reframe what they have heard to confirm their understanding, and provide the opportunity to ask questions

5. Promoting and Structuring Multi-Stakeholder Collaboration

Effective strategies to prevent or reduce backlog and delays usually include an element of multi-stakeholder collaboration, while still preserving judicial independence. This is so because many people are involved in or affected by the court process, and many others may have an important role to play in supporting those people and in helping to move the process forward fairly and effectively.

Promoting multi-stakeholder collaboration involves identifying the stakeholders affected by a particular measure, understanding their needs and perspectives, and involving them in solution design from the outset and at all crucial stages. Affected stakeholders may include litigants and their families, victims and witnesses, legal professionals and support persons.

Promoting collaboration also involves identifying and leveraging existing resources and expertise within the justice sector and the community. This could include the private and public bars, legal associations, legal aid and duty counsel, court workers, victim services, Indigenous workers or elders, and community and cultural organizations that provide support or services to justice system participants or can assist the court in understanding the needs of the diverse communities it serves.

A structured collaboration can help to define expectations, clarify respective roles and responsibilities as applicable, and strengthen communication and partnerships while improving justice services for court users. Examples of structured collaboration may include standing or ad hoc advisory committees, working groups, consultation and outreach efforts such as town halls or surveys, and the adoption of operational or communication tools such as frameworks, protocols, terms of reference or memoranda of understanding (MOUs).

COVID-19 has shown the benefit of preexisting multi-stakeholder collaboration and provided opportunities for new working relationships to emerge, many of which may outlive the pandemic and provide fertile ground for reducing court backlog and delays. For example:

  • Leveraging existing Bench and Bar Committees, or creating new advisory committees, to discuss and adjust court protocols or practice directives, both before and after their implementation, and to share ongoing information on court operations and their impact
  • Creating working groups to address court backlog and delays and facilitate the shift to new processes, such as virtual hearings
  • Establishing communication protocols to inform legal professionals, court users and the public of the evolving status of court operations
  • Strengthening ties between judges and/or court personnel in different regions to identify urgent and evolving local needs and available resources from other localities that could be deployed quickly (whether in person or remotely) to meet those needs

6. Implementing Early and Ongoing, Robust and Consistent Case Management Practices

Case management is an essential tool to ensure the proper administration of justice and prevent or reduce court backlog and delays.

  • “Case management” involves early and ongoing, structured intervention by designated judges or delegated officers at various stages to ensure that individual cases move forward effectively within the court system, in the interests of all persons involved and of the broader administration of justice.

Purpose of case management

The objective of case management is to either streamline a case towards early judicial or alternative resolution, when appropriate, or to focus issues as soon as practicable on what is reasonably necessary to decide the case. This involves allocating court time and resources proportionately to the relative complexity and importance of an individual case, as balanced with competing needs related to other cases or to the court’s overall caseload. The importance of a case may depend on the potential consequences of a case on the parties, on other affected persons—such as victims in criminal matters or children in family matters—, on the public interest, or on the state of the law or the broader justice system. The complexity of a case may depend on the legal issues at play, the number of parties and witnesses involved, and the type of evidence anticipated, for example if it is highly technical or specialized.

Scalability of case management

The more important and complex the case, the greater the need for structured and ongoing case management to ensure fair, timely and effective outcomes. But even simpler cases may benefit from a problem-solving approach that implements characteristics of case management at each stage of the process. In fact, each court appearance provides an opportunity to apply case management principles in practice: by setting out clear objectives and expectations, tracking progress proactively and holding parties to their commitments, judges can promote accountability and prevent unnecessary court appearances or overly long hearings.

Scope of case management

While specifics may vary according to the type and complexity of a matter, case management usually involves making detailed inquiries, setting and enforcing measurable goals and timelines, obtaining formal commitments from parties, and issuing orders as needed to explore resolution options and/or circumscribe the scope and duration of pre-trial applications and trials. For example:

  • Pinpointing discrete issues to be decided by the court
  • Admitting to, or agreeing on, certain facts or aspects of the case
  • Reducing the number of witnesses
  • Limiting the length of documents filed or the duration of a hearing, such as a trial or motion
  • Mapping out required actions by either party (for example disclosure of evidence, filing of motions), setting timelines for completion, and seeking commitments to promote compliance

Common characteristics of effective case management

While there are various ways to effectively manage a case, successful strategies often include the following characteristics:

  • Designated and trained case management judges or delegated officials who apply a proactive, problem-solving approach to moving cases forward
  • Early triaging and intervention to streamline cases and focus issues from the outset
  • Standardized inquiries and ongoing checks to promote consistency and continuity
  • Realistic timelines, deadlines and commitments stated on the record or in writing to promote timely action and accountability of the parties
  • Adapted processes to address the particular needs of self-represented parties
  • Centralized oversight to promote continuity and compliance in specific cases and improve the coordination of, and allocation of resources to, overall caseload
  • Court resources allocated proportionately to the relative complexity and importance of a case, taking into account competing needs arising from other cases

7. Promoting Early Judicial or Alternate Dispute Resolution

As courts and justice stakeholders are well aware, not all cases that are brought to court can or should go to trial. In many situations, alternate resolution measures may be appropriate to arrive at an outcome that is satisfactory to all parties and coincides with the public interest as required. But all too often, cases resolve only after significant time and judicial resources have been expended—sometimes even on the date of trial, which results in wasted court time that could have been devoted to other cases.

Exploring resolution opportunities and triaging cases towards available resolution processes at an early stage, and on an ongoing basis as appropriate, can help to minimize the risk of untimely resolution or unnecessary trials and help reduce delays overall. Relevant processes may be led by the judiciary or external stakeholders such as accredited/certified mediators or other recognized community programs, organizations or support persons (e.g. Indigenous elders).

In developing their strategy to reduce backlog and delays, courts may wish to take stock of available resolution measures, or even create new judicial dispute resolution options for some types of matters. Knowing where last minute resolution happens most often can help to identify areas for improvement. Implementing clear processes to promote early resolution, such as notices or practice directives, can help to structure and communicate options to parties or their counsel and promote consistency among the judiciary as needed, while alleviating the emotional toll of going to court for litigants.

Risk factors and caveats

While many cases and circumstances may lend themselves well to judicial or alternative dispute resolution, some risk factors may render resolution options inappropriate or ineffective. For example, some civil or family matters might involve a significant power imbalance between the parties—which could stem from intimidation or an abusive relationship, or from one party being self-represented—that might disproportionately disadvantage a party or even create security risks. In some circumstances, these risks can be mitigated by adaptations to ensure a fair and safe process for all involved, for example, by ensuring a vulnerable party is accompanied by a support person, and by setting out and enforcing clear ground rules on respectful conduct.

8. Optimizing Scheduling Practices

Structured scheduling practices are valuable tools to optimize the use of court resources and minimize wait times for both the court and hearing participants. This may in turn reduce the incentive for counsel to overbook their time when attending court, and promote the readiness and accountability of all hearing participants, while reducing costs and other pressures for litigants. Structured scheduling can occur at various stages of the court process and take on different forms according to the particular needs of the court and hearing participants. Courts may wish to consider the following practices individually or in combination as part of an overall strategy to reduce backlog and delays.

Staggered scheduling or individual time slots

Staggered scheduling involves breaking down the docket or hearing list in a given courtroom into different sub dockets or start times. Used effectively, this practice may help to triage cases and minimize wait times for those attending court, whether in person or remotely. Practices may vary – for example, dockets could be broken down by time slot (e.g. hourly) or by type of procedure (e.g. uncontested matters, matters to be spoken to, matters to be set for hearing).

As a complement or an alternative to staggered scheduling, designated time slots could be considered for individual lawyers or cases, particularly when lawyers have high volumes of cases to address or when hearings have a set duration.

Useful practices might include

  • Triaging matters before calling the regular court list
  • Starting triaging earlier than regular hearing times to reduce the risks or effects of multiple-bookings by counsel in different courtrooms at the same time
  • Having separate dockets or designated time slots for self-represented litigants to facilitate their participation and enable the court to provide procedural assistance without delaying other cases
  • Having a presumed maximum of matters on each docket list to balance the court’s daily schedule effectively, while retaining flexibility for urgent or exceptional circumstances

Trial scheduling

Effective scheduling of trials and other substantive hearings involves an extra layer of judicial oversight and coordination—or an adapted case management approach—to minimize the risk of cases collapsing or resolving on the hearing date and wasting court time that cannot always be reallocated on short notice.

Promising practices might include

  • The use of standardized trial/hearing readiness forms or readiness hearings
  • The setting and enforcement of realistic hearing durations
  • Clear directives requiring parties to notify or apply to the court within a specified timeframe to cancel, adjourn or amend the duration of a scheduled hearing

Structured overbooking of hearing lists

Despite the court’s best efforts, some cases inevitably collapse or resolve on their scheduled hearing date. In addition to robust case management and hearing readiness processes, courts may wish to implement strategic, or structured, overbooking of trial or hearing lists. This involves setting more matters than can be heard in a day to prevent judicial and courtroom resources from being unused due to last minute adjournments or resolution of cases. But in order to succeed, it also involves taking proactive measures to prevent adjournments or continuations that may result from overbooking, such as having overflow courtrooms and on call judges to hear extra hearings on short notice. Monitoring rates and types of matters that often collapse or resolve close to or on their hearing date may help to refine these strategies and improve the allocation of court resources.

9. Eliminating Unnecessary Court Appearances

Each court appearance involves significant time and effort for all involved. Judges, counsel and any litigants or witnesses who are required to appear need time to prepare beforehand. Court personnel need to administratively process each case file both before and after each court appearance. For litigants and witnesses, each appearance can also involve costs such as legal fees, transportation, childcare or lost income due to time away from work.

As such, each court appearance should have a meaningful, realistic and clearly articulated objective to effectively move the case forward, whether towards resolution or a final decision. Reducing the number and frequency of court appearances to what is reasonably needed is key to combatting delays and backlog. It also promotes more equitable access to justice, particularly for those who are experiencing financial difficulties, have competing employment or personal obligations, or must travel long distances for in-person appearances.

In fact, routinely adjourning cases for short periods that are not required by law and in which progress cannot realistically be achieved—for example, setting remand appearances every two weeks as a matter of course—can often impede the progress of a case and generate unintended delays, while taking up valuable court time.

By reducing the frequency of court appearances while setting clear expectations of what should occur before and at the next court appearance, time and efforts of judges and court staff spent on unnecessary appearances could be reallocated to other cases or matters. This also gives parties or their counsel a realistic opportunity to take the steps required between each court appearance to ensure their case progresses effectively, for example by reviewing the evidence and having meaningful discussions with their client and the opposing party.

In situations when a specific action is required to advance the case but the level of judicial oversight required is limited or can be exercised remotely, courts could also explore viable alternatives to in-person court appearances. Common examples of such practices implemented in various jurisdictions for routine procedural matters or some types of consent matters include

  • Written/desk applications for simple procedural matters where engaging with the parties is not required
  • Electronic applications (e.g. by email, online forms or apps) for administrative steps, such as setting hearing dates
  • Administrative filing of consent forms
  • Virtual appearances by audio or videoconference where appropriate, taking into account access to technology for hearing participants

10. Optimizing Case Flow Processes and Eliminating Administrative Inefficiencies

Often, the administrative processes involved in moving a case through the court system, including filing practices and registry functions, can be overly complicated or burdensome for what they seek to achieve.

  • “Case flow management” refers to the process—both the time and steps required—in administering cases or caseload as a whole within the court system. Case flow management is usually a shared responsibility between the judiciary and court administration personnel.

Identifying and eliminating unnecessary or duplicative processes, simplifying complex processes and automating certain routine processes can go a long way to reducing processing times for court staff and the judiciary while improving access to justice, especially for self- represented litigants. In turn, efficiencies gained could help to reallocate efforts where they are most needed, in alignment with the other principles outlined in this document.

As such, when strategizing on how to reduce backlog and delays, courts may find it useful to review existing processes in consultation with their staff, other justice stakeholders and end users to pinpoint possible areas for improvement. This step is particularly important before transposing processes to an online environment. Relevant questions to evaluate existing processes could include the following:

  • What is the origin of this process – where does it come from?
  • Why does this process exist – what is its objective or purpose?
  • Is this objective or purpose still valid – do we still need to aim for it? If not, should this process be eliminated altogether?
  • If the objective is still valid, does this process effectively achieve its objective?
    • If so, how? Could the process be simplified or improved further?
    • If not, why not? Should the process be eliminated altogether, or could it be adapted to achieve the intended objective?
  • If the process should be eliminated, what steps need to be taken to make this happen? For example, are amendments to court rules required? Should alternate processes be adopted?
  • If the process should be retained, what steps should be taken to simplify or improve it further, and to transpose it to a virtual environment as appropriate?

11. Sharing or Pooling of Court Resources

While sharing or pooling of court resources occurred to some extent before the arrival of COVID-19, the pandemic has highlighted broader opportunities to collaborate with other localities within a provincial/territorial jurisdiction, and potentially with neighbouring jurisdictions. These collaborations can seek to optimize resource allocation, centralize certain services as appropriate and feasible, and provide added flexibility to better serve different localities, including northern and remote communities where courts or justice services may not be permanently established or continuously available.

For example, during the pandemic, some jurisdictions implemented virtual service hubs or justice centres serving multiple communities, or drew upon supernumerary or retired judges from other districts to conduct certain judicial processes, such as settlement conferences. Even prior to the pandemic, visiting judges assisted other localities with certain court dockets or proceedings as needed to make up for shortages in judicial availability.

As courts develop their own strategies to reduce backlog and delays moving forward, they may wish to build upon these successful practices by further strengthening and structuring pre- existing or newly formed working relationships between different regions and stakeholders such as court personnel and judges. For example, formalizing relationships through terms of reference or joint protocols may help to assess local needs and identify sources of assistance at given points in time. Having a roster of supernumerary and retired judges to call upon on short notice or for specific procedures may help to fill urgent or systemic gaps as needs evolve.