In the waiting room of the Toronto small claims court, tacked to a puncture-scarred and discoloured corkboard, hangs a laminated sign with service hours and instructions. The court is open from 9 a.m. to 11 a.m. and 2 p.m. to 4 p.m.: four hours in total for the one, maybe two court staffers to attend to the growing number of ticket holders seated across from the front desk, waiting for their turn to be called. If the current speed of service is any indication, some may not be seen today, a possibility for which this courthouse seems prepared. “OBTAINING A TICKET DOES NOT GUARANTEE SERVICE,” the sign clarifies.

On this cool and cloudy Thursday morning in May, one woman has been waiting since the court opened to file an affidavit for an action involving her employer. But her number hasn’t been called by 11 a.m.; with a three-hour lunch break looming, she may just give up for the day. Another man, after trying and failing three times to file a claim online, arrived from Ajax around 10 a.m., and has settled in for a long wait.

It is something that has become synonymous with recent small claims litigation: waiting. With the system still reeling from pandemic-era closures, some litigants have spent years waiting for their actions to move forward, all while bearing the brunt of justice delayed.

In the aftermath of COVID, Ontario small claims courts have stalled, lagging far behind the post-pandemic recoveries of other Ontario court systems. The Local’s analysis of Ontario court data obtained from the Superior Court of Justice suggests that, despite a growing case backlog, small claims courts were still operating well below pre-pandemic levels as of 2022, over two and half years after the courts were first suspended.

Known as “the people’s court,” the Ontario small claims court handles civil claims under $35,000 (anything over is handled by the civil court system). Civil claims are, in essence, lawsuits for money: litigation over a business crumbling and payments owed, for example, or the damage from a car crash. Small claims court is meant to serve as a streamlined forum for civil justice, an efficient alternative to the convoluted and costly civil court system.

“People who use small claims court are [more] likely to be low income, [more] likely to not have a lawyer representing them,” says John No, a lawyer at Parkdale Legal Clinic. Unlike in the civil court system, litigants can hire paralegals as their representation, with rates more affordable than most lawyers. And though the dollar amounts claimed in small claims court may be lesser than in the civil court, it is no less busy. Roughly half of the province’s civil litigation claims go through the small claims court.

But as the civil court system in Toronto recovered to 144 percent of its pre-pandemic processing rate in 2022, the Toronto small claims court operated at just 67 percent.

Taken as a whole, the data paints a picture of who and what is given priority access to the justice system.

To best capture the post-pandemic recoveries of the civil, family, and small claims court systems (complete data for the criminal system was not provided), The Local compared the number of documents processed by each system in Ontario between 2020 and 2022 relative to the numbers in 2019, the last year untouched by pandemic interruptions.

As can be expected, all court systems experienced a drop in 2020, given the impacts of the pandemic. However, the 2021 and 2022 numbers suggest that the civil and family courts bounced back far quicker than small claims court. And though the gulf between civil and small claims was province-wide, it was most pronounced in Toronto, the province’s most active civil court system.

The Local spoke to several paralegals and lawyers who practice regularly in small claims court, and they consistently said the Toronto court was one of the worst to navigate over the last few years. Another GTA courthouse, the Brampton small claims court, was also regularly mentioned as being plagued by delays, something that lawyer Jennifer Fehr and her client have experienced first hand.

Fehr is a supervising lawyer specializing in labour law at Downtown Legal Services, the University of Toronto Faculty of Law’s legal clinic. Her client is a gig worker, operating his own small business providing translation services. The client approached her after a large translation services company failed to pay his bill. Had he been a traditional employee, his rights under the Ministry of Labour could have helped resolve the dispute within half a year or so, Fehr estimates. As a gig worker, though, if he wanted to get paid, Fehr’s client really only had one option: small claims court.

When Fehr’s client filed his action in Brampton in May of 2020, the court was frozen.

“Small claims was basically closed for a year,” Fehr says. “Very, very, very little was done in that year.”

Fehr’s client was in a bind. He needed the money. But as things stood, there was no way to hold his employer to account. While his action languished in litigation purgatory, he found himself taking on more jobs with the same employer, hoping that they would pay down their alleged debt in bits and pieces.

The entire Ontario court system has been plagued by delays since before the pandemic, says Hamilton lawyer and legal process advocate Michael Lesage. The Superior Court of Justice, which has jurisdiction over criminal, civil, family, and small claims cases, “was building up something like a 60,000 a year case backlog in the years leading up to 2019,” he says.

“Effectively, even without COVID, the system was on the verge of collapsing.”

And COVID certainly did not help. The courts paused and the backlogs, untended, grew wild. Faced with few options, other court systems began to adapt, holding virtual hearings, modernizing and digitizing filing systems. But the Ontario small claims court remained stuck in the mud. It was a halting resumption, with different elements of the court process reintroduced in the years since. For over a year and a half, until December 2021, the Superior Court of Justice suspended a significant bulk of their scheduled small claims hearings “due to COVID-19.”

According to a timeline of court operations provided to The Local by the Superior Court, small claims only began scheduling remote trials for new matters on July 23, 2021, well over a year after the initial pause. Key hearings to enforce outstanding orders for payment were paused until June 1, 2022.

“I am waiting on trial dates still on matters commenced in late 2019 and early 2020,” says paralegal Jahne Baboulas. Before COVID, “most actions were dealt with in under two years.”

A frequenter of the Toronto small claims court, Baboulas had written letters to court administrators in October 2020 asking why the small claims court was still shut down while almost all the “higher courts” were taking steps to reopen. The letters reached the offices of the Chief Justice of the Superior Court and Attorney General, who share responsibility for running Ontario’s Superior Court. Their specific managerial duties, however, are distinct from one another—an administrative compartmentalization meant to protect the independence of the courts. But it’s clear this siloing has also broken down the accountability process when it comes to delays in the courts.

In their eventual responses to Baboulas, seen by The Local, the offices of the Attorney General and the Chief Justice each avoid accepting responsibility, instead suggesting that the delay is related to matters under the other office’s control. The letters from the Chief Justice’s office say that the delayed resumption of operations was caused in part by insufficient staffing of small claims court, a responsibility that falls to the Ministry of the Attorney General.

The Attorney General’s office, in contrast, made no mention of staffing shortages or resource allocation in their November 2020 response to Baboulas, instead pointing out that the Chief Justice’s office manages scheduling responsibilities.

While both offices said in late 2020 that efforts were being made to resume small claims operations, this sluggishness has persisted well into 2022, The Local’s analysis shows. The delays raise questions about whether the post-pandemic recoveries of other court systems were prioritized at the expense of small claims—whether gig workers and labourers are being left behind as the courts focus on cases where more money is at stake. “[With] the lack of resources put into small claims court,” says John No, “I do wonder if there is a certain lack of priority given to the type of issues [and] demographics that the small claims court serves.”

When reached for comment for this story, the Ministry of the Attorney General reiterated that scheduling was outside of their mandate. “To preserve judicial independence, the ministry cannot comment on or interfere with the scheduling of cases or judicial resources,” they said.

They did not answer The Local’s questions about staffing, nor did the Superior Court of Justice when reached for comment.

“Effectively, even without COVID, the system was on the verge of collapsing.”