Sorry, I Don’t Make the Rules: Taking Seriously Chief Justice Morawetz’s Call to Overhaul the Rules of Civil Procedure

Rules that cry out for amendment. The need for simplicity and clarity. The desire to develop “innovative measures to ensure that the procedure in civil litigation is understandable by members of the public, the steps necessary to finalize a dispute are minimal and the cost of such procedure is reasonable.”

Those who watched the opening of the courts earlier this week would be forgiven for thinking that these are the words of Chief Justice Geoffrey Morawetz. In fact, they are taken from a report of the Civil Procedure Revision Committee authored almost half a century ago. In the last five decades, numerous attempts have been made to reform the Rules so that they promote more accessible, more expeditious, and more cost-effective justice. By and large, all those attempts have failed and, unless the overhaul of the Rules is fundamental and radical, this round of reforms will fail too.

Delays and issues of access to justice were at a crisis point even before the pandemic. Although Chief Justice Morawetz stated that “the civil justice system is simply not responding to the litigants” because the timeline in Ontario between the commencement of a civil matter and trial is 4 to 5 years, that is actually an underestimate. In 2019, it took a case in Toronto an average of 5 years and 9 months to reach trial, and for personal injury matters and other cases that are not case-managed, that timespan is even longer.

Things have not improved in the wake of the pandemic. The complement of judges available in Ontario for civil matters has fallen to 60 per cent of pre-pandemic levels, largely because of retirements and judges being moved over to criminal matters to address delays post-Jordan.[1] Those left behind are dealing with increasing numbers of self-represented litigants, because the cost of a lawyer in Ontario is out of reach for so many people.

As I predicted in my 2020 article on Covid and the courts (excerpted on Slaw here), the digitization of existing processes is laudable but does not go far enough. While Zoom hearings cut down on expense and travel time, they still require judicial resources and they can be even more overwhelming for self-represented litigants.

So, as the process towards overhauling the Rules gets under way, what can we do differently to make sure that we are not just tinkering with a failing system?

• Welcome diverse voices. We need to hear from the users of the system – that is, the litigants, and particularly those who struggle with unmet legal needs and the cost of legal services. Submissions must be sought from a variety of community groups, and must be sought early.
• Put the users at the centre. User-centred design is crucial to overhauling the system. As the prior chair of the BC Civil Resolution Tribunal said, this involves “[m]apping the process from the perspective of people who have everyday legal problems, who come from a whole variety of different backgrounds, and then designing to account for those as much as possible and level the playing field and to mitigate the systemic inequalities that we know we have”. This approach is also iterative – seeking input, testing the process with the users, and making changes accordingly.
• Make the process usable without lawyers. Our current system is designed by lawyers and for lawyers. To truly facilitate access to justice, we need to design a system that can be used by the growing tide of self-represented litigants. This would involve looking outward to the public that we are meant to serve, and seeking to meet their needs in a disinterested manner. Unfortunately, lawyers do not have a good track record of doing that.
• Follow the research. Law reform needs to be evidence-based. Do we really need the level of oral advocacy we currently have?[2] Is mandatory mediation adding to delay, or leading to earlier dispute resolution? What changes should we make to our discovery processes? Lawyers will all have their views on these questions – but we need to see what the evidence says.
• Look outside of Ontario. Despite the move towards digitization, data on the Ontario civil justice system is still extremely hard to come by. We need to look to other jurisdictions to see what they have done, particularly those with user-centred online dispute resolution mechanisms such as BC and the UK.

In my 2020 article, I identified Chief Justice Morawetz and Attorney General Downey as potential “policy entrepreneurs” who could make significant strides towards fixing our broken civil justice system. Fundamental change requires political will and leaders who are able to steer change at all levels of public policy. It requires a commitment of resources (where will Chief Justice Morawetz’s “nimble group of judges” come from if civil justice resources remain at their current crisis point?). It requires reorganization of the relationship between the judiciary and the Ministry of the Attorney General, so judges have more control over court functions such as scheduling and case management.

Finally, fundamental change requires a desire to design for the future while avoiding the mistakes of the past. As I noted in my 2020 article, “[w]e need to do better and begin to fundamentally transform our justice system in the interests of those who come to it for the resolution of their disputes. It would do little good to modernize our courts, only to be left with a system that is as slow, expensive, and inaccessible as the old one.”

—
Suzanne Chiodo, Assistant Professor,
Osgoode Hall Law School

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[1] Comments made by Justice Fred Myers at the Law Society of Ontario, “Our Civil Justice System: Pandemic Lessons and Forward Thinking” (June 6, 2022).

[2] At the end of September 2020, The Advocates Society had a debate on whether oral advocacy is central to the administration of justice in Canada. Only lawyers could think that the question of lawyers talking could be resolved by lawyers talking.