A Little Small Justice

It’s an obvious feature of practice that a lawyer’s professional interest will generally gravitate towards the big, the powerful, and the rich — there’s a business side to lawyering, after all, (though I’m not yet prepared to agree with those who say, reductively, that practice is a business), and, as a long-gone uncle used to opine, “It’s gotta be fed and it don’t eat hay.” That said, it’s good, I think, even for those in big towers and Jimmy Choo shoes, to reflect on small wrongs and rightings from time to time, the matters at the bottom of the justice pyramid upon which, to some extent, the glories of the upper reaches depend.

One neighbourhood in this basement of justice is surely populated by those who have disputes with their city arising from the small bumps and bruises we all encounter living in an imperfect physical environment. Toronto’s ombudsman, Fiona Crean, has just now published her report on how that city handles such claims. Her “Potholes, Floods and Broken Branches: How the City Handles Your Claims, An Investigation into the Processing of Third Party Liability Claims Under $10,000” [PDF] is illuminating, if not surprising. The executive summary is, in a word: badly. In two words: very badly.

In the five year period under review, Toronto received 12,449 of these small claims and paid its claims adjuster more than $2,000,000 to resolve them. Here’s a passage from Crean’s more expansive executive summary:

The Ombudsman investigation found that more than 90 per cent of these claims are denied. Claims are automatically denied at the outset, with a letter saying that there had been an investigation. There is no investigation. Information is not provided to claimants. Decisions are not supported by facts and are not explained to claimants. Adjusters routinely close files when claimants stop contacting them, which occurs when delays happen. No one tells the claimants when the files are closed.

. . . .

The City provides insufficient and misleading information on its website. There is little information about negligence or third party liability claims or applicable criteria. The view is that such information would generate more complaints….

Sounds very much like the kind of dystopia Thomas More might have invented, doesn’t it?

I’ve used the grand term “justice” here; Crean is more modest, preferring “fairness.” It comes to pretty much the same thing, I believe. Her conclusions:

241. The City holds out the promise of fairness in the resolution of claims. Its stated “objective in responding to claims is to ensure: fairness, transparency and timeliness.”

242. If fairness means a thoughtful consideration and a timely, informative response to a claim, the City process is not fair.

243. If fairness means that decisions are supported by facts and explained, then I found many decisions to be unfair.

244. If fairness means that claims are properly considered, I found instead a practice of denying claims outright, without consideration.

245. If fairness means telling the truth, I found an absence when claimants are told that their claims had been investigated.

246. If fairness requires following through on assurances to claimants, or telling claimants about developments in the file, the City failed to do so.

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