We all know we have an access to justice problem in this country. Actually doing something about it is more of a challenge.
In 1999, Justice Rosalie Abella – then a Justice of the Court of Appeal for Ontario – gave a speech which should be required reading for every lawyer, every judge, every ministry of justice official, every law professor and every law student; in short, for everyone involved in whatever way in the legal profession. Clients don’t need to read the speech because they experience its bitter truths.
Sadly, Justice Abella’s speech is timeless. The only thing that has changed is Justice Abella’s title. Fifteen years ago, she sounded an alarm:
“We have moved from being a society governed by the rule of law to being a society governed by the law of rules. We have become so completely seduced by the notion, borrowed from criminal law, that process ensures justice, that we have come to believe that process is justice. Yet to members of the public who find themselves mired for years in the civil justice system’s process, process may be the obstacle to justice. It may be time – again – to rethink how civil disputes are resolved.”
Read the rest of the speech. I will simply cherry pick one of the many important points from it: “Can we honestly say that the fair resolution of such a dispute requires several years and resort to hundreds of rules? . . . People want their day in court, not their years.”
Which leads me to my brief thesis: we need to start rationing civil justice.
The demand for legal services far outstrips the available affordable supply. Traditional thinking has been to attempt to increase the supply to deal with the demand: more lawyers, more money for legal aid, more clinics, more judges, more courts, etc. I know of no jurisdiction in Canada where there is a political appetite for more public funding for any of this.
Thus, a logical response is to ration the supply of civil justice. Here, we would best to consider parallels with the medical system since much of the civil justice is publicly-funded.
In fact, all of the civil justice system is publicly-funded except for the lawyers. Taxpayers pay for judges’ salaries, court staff, security and everything related to courthouses. Yet, we allow litigants and their lawyers to dictate the length and therefore the costs in terms of both dollars and consequent delays.
We allow lawyers to dictate the length of motions and trials based on their perceived needs. This is backwards. When we go see a doctor, we don’t get to decide we want to spend an hour or two with the doctor. We get 15 minutes and that’s it.
The justice system must similarly dictate time restrictions to lawyers and litigants based on available resources. This means setting firm time limits in different areas of the law. Family law trial or other civil case? You have two days. Put forward your best evidence. If the Supreme Court of Canada could decide the Senate Reform Reference with two and half days of argument, we should have to explain why more time should be given to standard cases.
Medical malpractice case? Each side gets two experts, not five. Or better yet, one court appointed expert. Motions? Change the default to make them in writing.
This is all harsh medicine for the legal profession and the justice system but do we really have any choice at this point?
As Justice Abella wrote in 1999:
When we say, “It can’t be done,” and the public asks, “Why not,” they want a better reason than “Because we’ve always done it this way.”
She was right in 1999 and she is still right in 2014. The question is whether she will still be right in 2029.