Judicial Criticism of High Cost of Justice

An article in today’s Globe and Mail reports on a judgment by Ontario Superior Court justice D. M. Brown in which he severely criticizes the high cost of access to the courts in Canada: “Ontario courts ‘only open to the rich,’ judge warns,” by James Bradshaw.

The particular decision, York University v. Michael Markicevic, 2013 ONSC 4311, involves a request by one defendant to discharge a certificate of pending litigation registered against her real property and is part of a larger action by York against Markicevic and others concerning their alleged misuse of university resources. Let me quote in full Justice Brown’s fourteen paragraph long denunciation:

[1] . . . More substantively, the motion raises important questions about the practical availability of access to the civil justice system.

[2] Access to the civil justice system requires ensuring that courts are made accessible to all, not just to the wealthy, but such access must be achieved in ways which are fair to the legitimate interests of both parties to a lawsuit. How to achieve such fair access to our system of civil justice is not a debate about abstract concepts. Maintenance of the cohesion of our civil society depends, in significant part, upon ensuring that those in society who have legal disputes enjoy access to the public civil justice system in order to secure an adjudication of those disputes. Lack of access to justice is not the negative of some desired abstract concept; lack of access to justice puts us on the road to unwinding the weave which holds our civil society together.

[3] The present case presents a concrete example of the problem. York University is making serious allegations of fraud against one of its former construction executives, Michael Markicevic, as well as against his wife, Janet Fleming, and his daughter, Mima Markicevic. Markicevic vigorously denies the allegations. His wife and daughter state that they had no part in any wrong-doing and have not received any benefit from any wrong-doing. The lawsuit has been on-going for over a year; it started on January 26, 2012. I will describe what has happened in this proceeding in a bit more detail in a moment, but suffice it to say for this overview, some year and a half after this action commenced, it is not much, if any, closer to a trial date.

[4] So, here the parties stand, five months after my decision on their first round of summary judgment and Mareva motions, no closer to trial, and with one defendant asking for access to her property in order to fund the defences of herself, her mother and her father.

[5] Achieving access to the civil justice system requires taking concrete steps. The most concrete and most readily available step to improving access to justice involves judges consistently making greater use of their inherent powers to control the civil justice process to ensure that those who seek justice actually end up in a court room where justice is dispensed, without encountering financial exhaustion before reaching the threshold of the court room.

[6] Why do judges not exercise greater control over the civil justice process to achieve that end?

[7] Are they fearful that if they try something creative to move a case along, they will be slapped down by an appellate court? Perhaps that thought lingers in the recesses of their minds, but decisions of appellate courts of this province in recent years have supported such efforts by trial and motion court judges, as long as the creative solutions are fair.

[8] Are judges becoming indifferent to the task of attempting to control the civil justice system? Here we are moving closer to the present day reality on the ground. One cannot overstate the oppressive effect on judicial morale of the endless waves of cases which seem to be going nowhere in a civil justice system that is sinking. Why try to be creative when the system, with a life of its own, grinds relentlessly on and downward?

[9] Have judges lost touch with how to move a case along to a final adjudication? For the better part of 20 years the relentless mantra has been – trials are bad, mediation will solve all problems. Of course, it hasn’t. As a prominent Toronto litigator, Mr. Alan Lenczner, observed in a speech last year about the current state of the Canadian justice system:

“There is an unavoidable message, much as we do not wish to hear it – We are in a decline!”

Let me venture the view that judges, as a collective, are losing the will and ability to move cases along to trial because we are led (wrongly) to believe that trials represent a failure of the system.

[10] Where does all of this leave the person who really matters – the litigant in the civil justice process, who more often than not simply wants to get before a judge, tell his or her story, and get a decision? If one were to describe the progression of a civil lawsuit, from its start to finish, as akin to a walk from one side of a field to the other, with the determination of the parties’ legal rights awaiting on the far side of the field, then litigants increasingly are coming to see that walk as one involving small, tentative, money-draining steps, with each side probing the ground ahead, through interlocutory motions, to ensure no tactical obstacle or hidden mine lurks beneath the surface of the field. As the parties’ snail-paced walk proceeds across the field, and as the money flows out of their pockets, all too often, at the point when the parties’ financial resources are exhausted, they raise their heads, look across the field, and discover that the other side – whence rests the final decision on their dispute – remains elusively distant and beyond their practical reach.

[11] That should not be. Such a state of affairs reflects an unacceptable failure on the part of our civil justice system.

[12] The primary purpose of our civil justice system must be to enable those who have legal disputes against each other to secure an impartial third-party adjudication of their disputes. I have come to the conclusion that the best way to adjudicate the merits of the case is not through endless interlocutory motions, where slivers of the merits of the case are subjected to intense scrutiny, but to no final result. Nor is it through making every case pass through the hoop of rigid mandatory mediation, when the nature of some disputes dictates getting before a judge as soon as possible. Nor does the solution lie solely in case management which, unless relentlessly focused on pushing a case on to trial readiness can turn into as unproductive a quagmire as interlocutory motions. The best way is by forcefully managing the parties to trial. And not a trial in the media, as is happening in this case, where the plaintiff’s allegations have been picked up by and repeated by the local news media. But a trial in the public courts of this province.

[13] The plaintiff has made serious allegations against the Markicevic defendants, which the defendants deny. I do not know who is right or who is wrong. What I do know is that the defendants are entitled to their day in this Court. If they win before the trial judge; they win. If they lose; they lose. But, the defendants are entitled to have a judge of this Court be the one who decides whether the most serious allegations leveled against them have or have not been made out.

[14] These comments express, perhaps in somewhat blunt language, the fundamental principle underpinning our province’s civil justice system – its purpose is to secure the just, most expeditious and least expensive determination of civil proceedings on their merits, by employing a process proportionate to the importance and complexity of the issues and to the amount of involved and, I would emphasize, by using a process which actually results in a final decision on the merits. Fair; fast; cost-effective; finality – these, then, are the principles which will guide the exercise of my discretion engaged by this particular motion by one defendant.


  1. David Cheifetz

    We’re talking about the cost of access to the civil justice system, here.

    You -the generic you – really want to increase access to just and (in an overall sense) reduce the cost to individual litigants? Eliminate most of the mandatory “user pays” costs rules.

    That’s not a new suggestion. It’s been done.

    Then, so long as there’s enough litigators to service the demand, most people will be able to find a lawyer on terms they’re prepared to accept.

    Quality might suffer in some cases, but then you get what you pay for.

    They are two components to the “high cost of justice” cant. (1) the litigant’s legal fees: what the litigant pays the litigant’s own lawyer; (2) some portion of the opposing litigant’s legal fees in jurisdictions which use a significant form of the “loser pays” rule. This is the litigant’s costs exposure.

    For present purposes (1) includes whatever amounts the litigant has to pay the court as court fees. Those fees set by the bodies that run the courts – usually the gov’t – so can be reduced or eliminated in appropriate cases by the gov’t if the gov’t believes they’re are problem.

    There’s a significant difference between the costs aspect and the fees aspect. The fees cost (unless the lawyer is prepared to work on contingency) is up front. Costs exposure remains inchoate until there’s a court order or an agreement to pay.

    The standard response to the suggestion that the loser pays rule be eliminated is that the ability to recover some portion of one’s own fees tends to increase access to justiice by making it more affordable to those with limited resources. The problem with that argument is that it depends on there being costs recovery, but that requires a court order or agreement. One doesn’t get a court order without going to court?

    Agreement? You mean like mediation where the result is that each side bear their own costs?

    The loser pays rule is the proverbial 2 tonne gorilla. The beast is going to keep putting on weight.

  2. Here is a comment on Justice Brown’s decision that puts a bit more value on mediation than does the learned justice.