While we don’t have much by way of empirical data about what actually happens to claims filed in the superior courts, we do know that only about 2% to 5% of these cases are ultimately resolved by way of trial. In light of this fact, the conclusion is sometimes drawn that at least 95% of filed cases settle – that is, resolve without trial. Research completed over the last few years however, should serve to displace this assumption. Research into the nature and scale of unmet legal need and into the phenomena of self represented litigants, makes it clear that a significant number of litigants do not achieve resolution in the courts, either by negotiation or by trial. The research suggests that for some litigants the barriers of cost, delay and complexity will not prevent their entry into the system but will ultimately frustrate their efforts to reach a resolution.
This raises a number of important questions. The justice system would benefit from a more precise understanding of the nature and scale of case attrition. For example, it would be very useful to know:
- what proportion of filed civil cases are not resolved?
- how far do these cases progress in the system and at what cost?
- why are these cases not resolved and what factors contribute to claimants’ abandoning litigation?
- to what degree are claimants satisfied with their outcomes following attrition?
- what are the short and long-term impacts associated with case attrition for the court system?
As a part of the Canadian Forum’s “Costs of Justice” research project a study is now being developed to explore these questions. The study will be conducted in British Columbia over a period of approximately 6 months and will involve up to 220 claimants. The methodologies used will include the extraction of data from electronic court records, a review of hard copies of civil case files and a telephone survey with claimants to secure file details and to discuss their experience in the court system.
The most recent report of the Action Committee on Access to Justice in Civil and Family Matters – A Roadmap for Change, October 2013 – called for more access to justice research in order to promote evidence-based policymaking. The report observes that,
reliable and meaningful metrics and benchmarks need to be established across all levels of the system in order to evaluate the effects of reform measures. We need better information in the context of increasing demand, increasing costs and stretched fiscal realities.
This study of case attrition responds to the Action Committee’s suggestion. Its aim is to inform policies, programs and rules that will allow more litigants to stay in the justice system until their claims are resolved.
 Canadian Bar Association, Task Force on Systems of Civil Justice, August 1996, p.11
 For an overview and summary of legal needs research studies see Chapter 1 of Legal Australia-Wide Survey: Legal Need in Australia, Christine Coumarelos, Deborah Macourt, Julie People, Hugh M McDonald, Zhigang Wei, Reiny Iriana & Stephanie Ramsey, 2012. For current research on self represented litigants, see Dr. Julie Macfarlane, The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants, Final Report, May 2013.
 The Cost of Justice: Weighing the Costs of Fair and Effective Resolution to Legal Problems is a five year long study being undertaken by the Canadian Forum on Civil Justice with the goal of defining the economic and social costs of justice.
 The study is being undertaken by Focus Consultants of British Columbia with support from Prof. Jerry McHale of the University of Victoria.
 At page 23. See also Canadian Bar Association, Reaching Equal Justice Report: an Invitation to Envision and Act (2013) at p.142.
By M. Jerry McHale, QC, University of Victoria, Faculty of Law