In the various provincial election campaigns across the country, there is little attention being paid to the funding of the civil justice system. Among elected officials, the dominant paradigm is one that sees funding of the civil justice system as an obligatory expense for the government. The costs appear unlimited and ever increasing. The challenge within this paradigm is how to minimize this expensive item while still meeting their basic obligations. The results are evident in court delays, the ever increasing number of self-represented litigants, increasing restrictions on access to legal aid, and a myriad of unresolved civil disputes in this country.
Try to imagine a different paradigm for thinking about funding the civil justice system. In this alternative paradigm, increased funding would not be linked to increased costs but rather result in lower costs. How is this even conceivable? In other social policy contexts, this sort of paradigm shift has already occurred. For example, investing in early learning is now viewed predominantly as a tool for cutting costs related to youth later on. Can something similar be said about the civil justice system?
Those who regularly interact with the civil justice system – judges, court administrators, law enforcement, lawyers, litigants (individuals, businesses) – know full well that the present paradigm is generating costs that are not constitutive to the civil justice system. How can we understand those costs? How can we measure them? What do they tell us about the true costs of the dominant paradigm for civil justice system funding? These questions have received little systematic treatment here in Canada nor in other countries.
The Canadian Forum on Civil Justice, the leading independent think tank in Canada focused on civil justice reform and access to justice, is just beginning a major research project called The Cost of Justice: Weighing the Costs of Fair and Effective Resolution to Legal Problems. It is designed to undertake groundbreaking and innovative research which will provide the foundation of critical information needed for evidence-based decision-making about the civil justice systems in Canada and internationally. This project is being funded by a major grant from the Social Sciences and Humanities Research Council of Canada with support from a wide range of government, commercial and community partners. The project is to be carried out by an international team of academic researchers in Canada, United States, United Kingdom and Australia.
The civil justice system is a fundamental and far-reaching component of democratic societies which touches the lives of Canadians every day. It impacts them through contracts and credit situations, family relationships and their breakdown, personal injury and various corporate arrangements. Surprisingly little is known about how well the civil justice system works: what it costs, who it serves, whether it is meeting the needs of users, or the price of failing to do so. The project is organized around answering five key questions:
- What are the costs of pursuing the resolution of legal problems?
- What are the costs of not achieving resolution?
- Is the cost of achieving resolution economically and socially warranted?
- What can be done to effectively prevent disputes, and at what costs and benefits?
- What choices and changes are recommended based on the available evidence?
The underlying insight of the project is that there are often huge social and economic costs in delaying or not resolving civil disputes and that in the paradigm for civil justice system funding that dominates among elected officials, these costs are given little weight, in part because they are not well understood. The Canadian Forum on Civil Justice hopes to shift that paradigm by making these costs more transparent, and thereby creating a climate where it is conceivable that improved funding in the civil justice system will cut costs.
Lesley Jacobs, Principal & Academic Director, Canadian Forum on Civil Justice