The Role of the Judiciary in Fixing the Civil Justice System
On Thursday night the OBA Civil Litigation and Insurance sections held their end of term dinner.
The keynote speaker was Alan Lenczner. I have heard many speeches about how to fix the broken civil justice system, but this was different because of its focus on how the judiciary can assist in the fix.
Lenczner’s message was that sophisticated litigants are leaving the civil justice system in droves, opting for private arbitration. The result is a shrinking body of decided cases. To get these litigants back into the civil justice system, we have to get rid of the inefficiencies.
One of the biggest problems is the length of time it takes to get a matter into court for judicial determination. Dates for trials longer than 10 days are now being set for 2016. It takes months to get an appointment for an interlocutory motion before a master or judge.
The judiciary can assist in removing these delays, Lenczner said.
Judges should hold counsel to deadlines prescribed by the rules. Costs awards against counsel, even in small amounts, would quickly end wasteful and delaying tactics. Too many court rooms are empty by midday because the list has collapsed. The old booking system that was flexible enough to allow more matters to be scheduled per court day and for overflows transferred between court rooms, should be re-introduced. Judges should be available to hear matters 9 – 5.
Lenczner concluded by offering to lend his voice to a call by the Bar for meetings with the Bench to start the process of engaging the judiciary in fixing the problems in the civil justice system.
Don’t we want the sophisticated litigants out of the justice system? Puts less strain on the system as a whole. It seems to me that the issue is one of scarcity – that Ontario is under-resourced in terms of managing the existing number of matters in terms of judges, court resources, support staff, et cetera. I’m not convinced that using costs awards to co-erce behaviour is the model of justice that we are hoping for in this province.
I think that they should up the cost of using the system – that if you are going to go to court you have to contribute towards the cost of maintaining that structure. Up the court fees based on a sliding scale for income/resources. My two cents.
Inefficiencies? Such as the matter-competence of both counsel and judges?
We’re not going to fix adequately the former so long as the only formal requirement for eligibility to appear in court, on any matter, is that one hold a current, qualifying, Canadian licence to practice law.
We’re not going to fix adequately the latter so long as most judges are required to hear the full range of civil matters.
Finally, the current view amongst the Ontario judiciary seems to be that everything should be pushed to trial. There’s room to suggest that part of the reason for that is the belief that approach is necessary to ensure that litigants aren’t prejudiced by their lawyers … failings.
Interesting in light of the kerfuffle in England over the government’s hiring of a management consultancy to, in the words of the Guardian, “enforce radical economies on HM Courts and Tribunals Service.” Apparently the suggestion is in some quarters that there’s a plan to privatize some courts. The lord chief justice has written the minister warning against any such plan.
As Bryan Delaney asks, isn’t this a good thing? Never mind the condescension in implying that “sophisticated” litigants can afford to pay for private arbitration and tend to produce more desirable jurisprudence (was something lost in translation here or am I being over-sensitive?), the speaker’s message seems to overlook that unclogging courts is goal number one of any respectable justice reform effort.
If gains in efficiency arise from large commercial litigants parking their protracted disputes outside of the public arena of the courts, then so much the better. Maybe then the public will have better and more timely access to the courts that they fund through their hard-earned taxes. Maybe then justice reformers will feel compelled to change court fees and processes to become more affordable and straightforward in service of individual and small commercial litigants.
Jamie,
There’s no need for anybody to be concerned that Ontario courts will ever be unclogged so long as each attempt by the Rules Committee to produce a mechanism for summary disposition of actions is frustrated by those judges who find issues warranting trials lurking under every rock.
Apart from that, off hand, if we really want to unclog the motion and trial courts, we need to move to system where all interlocutory pretrial motions are heard in writing unless the judge rules otherwise; a strict limit on the size of the material and almost sacrosanct, draconian if you miss them, time limits; the default rule would be that costs of all such motions would be in the cause unless the motion judge rules otherwise – the otherwise occurring only if the judge asks for submissions; and we adopt the American system (or if one would prefer the Nova Scotia system) of being able to depose the other sides witnesses before trial so that if one wishes and the related procedure of the availability of pretrial motions limiting the evidence that could be called at trial.
Cheers,
Addendum – If you suspect, as I do, that that sort of regime would increase the upfront cost, to the client, of litigation, or the risk to the lawyer taking the file on contingency, you’re likely right. On the other hand, that might have the desirable result of making more litigants look more closely, at an earlier stage, at the merits of the claims.
Even if it means many disputes are resolved by some sort of consensual, one-shot, summary form of “interest-based” mediation.
David,
Your proposal is complex and will take my plodding mind a while to contemplate.
My thinking re the flight of large commercial litigants to private arbitrators is basic and undoubtedly naive. I liken it to very affluent and time-strapped Canadians seeking intensive medical procedures for which there are long wait-times. They often avail themselves of costly but timely treatment alternatives south of the border. This shortens wait-times for everyone else, and reduces pressure on the public purse. So long as the Canadian system remains equitable, robust and doesn’t “ghettoize” over time as a consequence, it sounds pretty good to me.
I don’t think it’s naïve. The reality is that if one wants an expert tribunal, at least at the first stage, that’s easier to ensure if one goes private. One can always build in a right to appeal on issues of law. Also, one easy response to the fear that private dispute resolution will tend to marginalize the courts, on the civil side, is that it hasn’t happened in, for example, the maritime law world and the reinsurance worlds. Perhaps, though, that’s a function of scale: meaning the volume of claims is enough to keep both systems vibrant.
I’m speculating. I’ve no information on the numbers.