On 31 May 2011 Justice David Brown of the Ontario Superior Court of Justice delivered a paper under this title. His central thesis is that until certain obstacles are removed, and assuming a fixed judicial complement, little significant improvement can result from the changes to the rules of civil procedure that came into effect in 2010, or any future changes to the rules.
Brown J. identifies two sacred cows and two stumbling blocks.
The sacred cows are:
1) that the administration of the courts must remain under the control of the executive of the government;
2) that unlimited judicial resources are available for every civil dispute.
The stumbling blocks are :
1) the increased number of self represented litigants;
2) inadequate information technology to manage the cases in the judicial system.
The first cow: key aspects of the control of the litigation process should be in the hands of the judiciary, but are not. This makes it impossible for the judiciary to control the litigation process. Some examples are: the ability to ensure that the information maintained about cases meets the needs of the judiciary; the ability to ensure that materials required by the judiciary to adjudicate or mediate are organized so as to be accessible to judges; the ability to assign and deploy personnel.
Second, the rules of civil litigation assume unlimited judicial resources exist for every case. Some solutions proposed are: rationing of judicial time for example by assigning a fixed number of motions to each proceeding; charging higher filing fees for additional motions; penalizing obstructionist conduct through multiples of indemnification costs; awarding priority dates to well-run litigation; more motions in writing; higher filing costs for longer hearings; more aggressive use by the Bench of rules that permit judges to control the court process such as time limits for evidence in chief and cross, and some outsourcing of judicative functions.
As to the first stumbling block, the paper contains an interesting comment on self reps: they are not a homogenous group. They can be broken into those “lost” in the system (5%), those under disability(5%); those who cannot afford a lawyer (25-30%) but the largest sector are those who think they can do a better job than a lawyer – 65-70%. Together they pose significant problems. The solutions proposed include more staff scrutiny of material filed, availability of “unbundled” representation services, limitations on self-representation, and case management to prevent unnecessary interlocutory motions.
The second stumbling block His Honour describes is the existing information technology system which he calls a “scandal”. Litigants cannot communicate with the court electronically. The court system cannot be depended on to preserve, organize and deliver hard copies of materials to the judge. The existing system is incapable of delivering adequate information about the case history to judges responsible for scheduling proceedings. No organized approach exists to electronic trials.
Justice Brown concludes unless these obstacles are removed, “I have difficulty seeing how tangible improvements in Ontario’s civil justice system can occur in the face of fixed judicial resources.”