Arbitration and the Death of the Common Law

A couple of years ago, in the Before Times, I chaired a panel discussion on the arbitration of family law disputes at a wonderful program hosted by the Legal Education Society of Alberta in Lake Louise. The purposes of the panel were, firstly, to encourage a critical and creative approach to the design of arbitration processes and, secondly, to promote the arbitration of family law disputes in those parts of the province where it has yet to achieve the profile it rightly enjoys in Calgary.

The panel was a success – and with experienced arbitrators including Justice Sherry Kachur, Doug Moe, Krysta Ostwald and Wayne Barkauskas on deck, how could it not be? – but a number of lawyers approached me afterward to express variations on a common concern. Given the private and confidential nature of arbitration proceedings, doesn’t the arbitration of family law disputes stunt the development of the common law? It’s an interesting point, and one that often arises in those areas of the law where arbitration has become the dominant mode of dispute resolution, such as construction, engineering, insurance, shipping and labour. However, I’m not sure the problem, assuming it is one, exists in the family law context.

Here’s the basic background to the issue. Arbitration provides an adversarial means of resolving disputes where mediation and other forms of negotiation have failed or are otherwise undesirable. While those seeking an adversarial solution might also go to court, arbitration is faster and more efficient than litigation, provides processes that are proportionate to the importance, value and complexity of the issues in dispute, lets the parties hand-pick the subject-matter expert who will resolve their dispute, and affords an often-welcome degree of privacy and protection from public view. The backlog currently plaguing the courts in many parts of Canada offers a further incentive to arbitrate.

However, arbitrators’ awards – their decisions and reasons for judgment – have no precedential value. They are neither published nor distributed to the press. They are sent directly to the parties and their counsel, and their content, as well as the ultimate outcome, are protected from disclosure by the very same arbitration agreement that gives the arbitrator their jurisdiction and binds the parties to their decision. This, it is said, retards the evolution of the common law by culling important legal issues from the herd, such that the manner of their resolution has no influence on future generations. Lord Thomas of Cwmgiedd, the former Lord Chief Justice of England and Wales, once fretted that the rise of arbitration in the commercial context had created “a serious impediment to the development of common law by the courts.”

In my respectful view, the development of the common law has, at least in the family law context, created many more problems than it has solved.

As law school tells it, the common law is an intricate baroque tapestry of legal principles. Stare decisis at once provides stability and predictability while allowing fixed law to be embellished and embroidered upon as circumstances require so that justice may prevail. I’m sure there are areas of law where this romantic, living-tree view of the law is made real, but in family law, whether we’re talking about the interpretation of a statute or the application of the Supreme Court of Canada’s latest dictum, I often feel that the tapestry has been abandoned to a roomful of toddlers armed with crayons and safety scissors. This carries important implications for the profession and laity alike.

Take, for example, the case of Gordon v Goertz, the lawyer’s classic bête noire. When first released by the Supreme Court in 1996, it provided invaluable direction on the resolution of mobility cases, themselves a bit of a bête grise. However, as the factors and test were considered in case after case, the decision lost its usefulness to the point where its principles could be shaped to support or oppose a proposed relocation in any given situation. I remember a presentation given to the Continuing Legal Education Society of British Columbia by Rollie Thompson some 10 years after Gordon was released. Rollie, always a humorous and engaging educator, presented the audience with fact patterns from various cases and polled us as to whether we thought the result permitted or forbade the move. The joke, of course, was that we were always wrong.

The development of the common law also impacts our interpretation of legislation. I recall, for instance, the provisions on the division of family assets under British Columbia’s old Family Relations Act. The rule was that if an asset was ordinarily used for a family purpose, both spouses had an equal interest in that asset. Under section 65, the asset could be reapportioned more to one spouse than the other if an equal division would be “unfair” in light of a list of six factors. Of course, the intention of the legislature back in 1978, when the law was passed, was to create a firm presumption in favour of an equal division, thereby ensuring predictability of result and discouraging pointless litigation. However, the presumption eroded as time passed and the law on section 65 developed, and, by the time the legislation was replaced 25 years later, it seemed as if a spouse might qualify for a lopsided distribution upon proof that the asset had been acquired at high tide during a waning moon. (The solution under section 95 of the new Family Law Act? An equal division must be significantly unfair before family property will be reapportioned. Let’s see where are on that in 20 years.)

While I admit to cherry-picking Gordon and the reapportionment of property, there are dozens of other examples I could have picked to illustrate the problem. Take the appellate case law on costs. Are family law disputes in fact like any other civil dispute in which costs follow the cause, as the appeal decision in Gold v Gold demands, or are they not, as the preponderance of subsequent lower court decisions suggests? Or take the case law on imputing income. Or the law on the wrongful removal of children. Or the impact of retirement on spousal support obligations. Or the entitlement of grandparents to contact with a child. Or the calculation of child support when more than one person has an obligation to pay it.

From the point of view of the profession, the uncertainty created by the common law’s embellishments and embroidery limits our ability to advise our clients on the probable outcomes of their cases. This in turn pushes our clients away from settlement and toward trial. Trial increases the amount our clients pay to resolve their disputes, and the time it takes to resolve them, it entrenches and exacerbates the enmity between former partners and spouses, and it extends the amount of time that must pass before parents are again able to function together as parents.

From the point of view of the public, the common law has a profoundly negative impact on the ability of ordinary Canadians to access justice. Assuming that a layperson is able to read and understand the applicable legislation – which is far from guaranteed, particularly in the case of certain federal statutes like the Income Tax Act or the Canada Pension Plan, both of which can be critically important in family law cases – nowhere does that legislation say “oh, by the way, there’s this enormous body of uncodified law that you need to find and read in order to understand and apply this statute.” And if Jane Q Public is able to find the case law, she would need to go to law school to learn how to separate obiter from ratio, never mind parse the jurisdictional and hierarchical nuances of precedent that is binding, that which is persuasive, and that which is merely nifty.

Now, I don’t mean to imply that these complications, crenellations and confusions are the fault of malevolent judges intent on wreaking havoc with their decisions. Far from it. In fact, the vast majority of the judges I know are passionate, caring individuals who do their absolute best to provide fair resolutions to the family law cases that come before them. This good intent, however, is the cause of the problem.

Family law cases involve people, not governments and corporations, and quite often these people have children. Far from being soulless automata, judges are empathetic individuals who strive to provide decisions that are equitable and just, and make the best possible arrangements for families living apart. Quite often, the softening, adapting or reinterpreting of precedent and statute is needed to achieve these objects. (Consider the Supreme Court’s rather unpopular decision in Contino v Leonelli-Contino, and the incredible outburst of judicial creativity prompted by the effort to avoid it.) Unfortunately, the pursuit of these undoubtedly noble goals necessarily results in the granting of individual justice, and the collective pursuit of individual justice inevitably results in a body of common law that is incoherent and inconsistent, and at times contradictory.

The common law system has served us well these last almost thousand years. It is surely the least likely but most important legacy of the Norman Conquest. But there are a handful of good reasons to suggest that we might want to consider limiting the application of traditional common law principles in family law, and perhaps in other areas of the law, like wills and estates, that deal with people and their messy lives. While I doubt very much that resolving family law disputes out of court does anything to materially impair the development of the common law, if that happened to be the case, I wouldn’t be terribly upset about it.

However, barring the making of policy aimed at diverting family law disputes into arbitration as a matter of course or the establishment of an administrative tribunal to remove them from the courts altogether, the existence of arbitration as an option to litigation is no more of a threat to the ongoing development of the common law than mediation. Litigators will continue to litigate because trials and the rules of court are comfortable and familiar, because orders may be enforced in the same forum that issues them, because clients inclined toward conflict except to litigate, and because litigation is wonderfully remunerative. Lord Thomas can rest easy.