Are Litigants With “Funds and Audacity” Hampering Access to Justice?

A few comments with respect to access to justice caught my attention in the recent Manitoba Queen’s Bench (Family Division) decision in Price v. Laflamme, 2013 MBQB 25 (CanLII). In the course of providing reasons for a decision on costs at the conclusion of a lengthy trial, the trial judge noted that the conduct of the petitioner’s conduct in the matter effectively discouraged any possibility of resolution of the matter. He noted that:

Implicit in that conduct may have been a desire to exhaust the resources of the respondent/father in pursuing his position. No stone was left unturned. No examination convened briefly nor succinctly. No fact was agreed, nor position comprised, nor argument abandoned on the basis of relevancy. Also supervised interim visitations were recorded and transcribed. All telephone access was recorded and transcribed. No method of delay was avoided.

This is clearly “conduct tending to lengthen unnecessarily the duration of the proceeding.” In accommodating the procedural steps undertaken, not the least of which was requiring six additional trial days beyond that which was first reserved, a disproportionate sharing of this court’s resources were seriously challenged. [paras. 25-26]

Mr. Justice Johnston went on to quote from the decision in Dunford v. Dunford, 2012 MBQB 204 (CanLII), with respect to the conduct of the petitioner in this litigation, noting that such conduct requires a message to be sent to the litigant.

The decision in Dunford was also with respect to costs, but on an interim motion for financial disclosure and spousal support. Mr. Justice Thomson’s reasons are terse and unequivocal. Having seized himself of all subsequent interim proceedings, he said that:

…the recent conduct of this litigation on the issue of interim costs has ill-served the interests of the parties, though it is unclear to me whether they recognize that or, if they do, whether they care.

There has been in my view a grossly disproportionate expenditure of resources and energy relative to the issue at hand.

Much more important to me has been the apparent misuse of precious court-time and judicial resources resulting from that recent conduct.

The excessive and, frankly, selfish utilization of the court’s process should not be permitted to occur; there must not be resignation that this is the foregone course of domestic litigation where there happens to be the coincidental alignment of personal animosity between counsel, the receipt by them of irrational instructions, and the possession by their clients of substantial financial means.

Access to justice is premised upon a number of principles; chief among them in my view is that such access is to be fairly made available to all, and not to be dominated by those with funds and audacity. [paras. 44-48]

The frustration of both judges is plainly evident in these decisions, and given strained court resources across the country and ongoing issues in access to justice, particularly in family law matters, their frustration is not surprising.

These decisions identify disproportionate use of limited court and judicial resources by those with funds to conduct protracted litigation as hampering access to justice. While the individual litigants in these matters, and their counsel likely never considered the wider impact of their choices on others seeking to access the family courts, the result was that court and judicial resources were redirected to from other cases to their own. Such resources are not limitless, and other litigants will necessarily have felt the effect of this redirection.

The Canadian Bar Association’s Envisioning Equal Justice consultation paper, Underexplored Alternatives for the Middle Class, recognizes the need to “re-engineer” dispute resolution processes and explores a number of court process reforms as potential means to provide better access to judicial dispute resolution. These include:

  • consideration of proportionality
  • diversion and streaming, simplification
  • case management
  • better use of technology

While such process reforms could address some of the issues raised by these recent decisions, it is worth noting that Manitoba does have a unified family court and mandatory case management processes are already in place in the Family Division.

The imposition of substantial costs orders serve at best deter those who already are struggling to afford their day in court and in any case, is only useful as a stick after the resources have already been “misused.”

Ultimately, I am not sure whether these decisions will assist in enhancing access to justice for family law litigants; but, I am hopeful that as a consequence, at least some will pause to reflect for a moment or two on the problems that continue to arise as demand for judicial and court resources increasingly exceeds supply.

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