More on Rationing Civil Justice

Adam Dodek’s excellent post on these pages a week ago stirred up some lively comments.

The topic deserves more attention.

Everyone seems to be in agreement that there is no political appetite for more public funding for civil justice.

The solution proposed by Adam Dodek is: setting time limits for cases, limiting expert testimony and, by default, motions in writing.

Some commentators call on the judiciary as the stakeholder with the power to impose a solution. Some warn of the tendency for rationing to increase prices. Others point to the liability issues arising from leaving out marginally relevant evidence, and the unfairness of rationing access to justice. One commentator argues rules that ration may increase and complicate, rather than reduce or simplify, the existing rules.

Aggressive promotion of mediation is the solution the civil justice system heralded a decade and a half ago. But it is the drift net fishing approach, tangling up in its nets those who want their rights determined. Over the same period, probably as a result, it has become harder and harder to get a date in a courtroom in front of a judge who has the time and the inclination to listen to the case, and decide it.

I am reluctantly coming to the conclusion that the best choice, for parties who want their rights determined, is private arbitration.

True, you have to pay for the arbitrator. True, you have to pay for the reporter, and the room. And, big picture, arbitration decisions do not contribute to the incremental development of the common law. But the case starts on the date the parties want, they get a decision by the date they ask for it, and win or lose, they can move on with their lives.

Veritas Odit Moras – Truth hates Delay.




  1. I’ll start with the observation that civil justice is seen (at least by the plaintiff) as intended to address a perceived injustice. Most people would rather suffer no injustice in the first place than have an opportunity to experience due process. So, an objective of due process, beyond resolving a given dispute, ought to be to discourage further occurrences of similar injustice.

    I served as a juror in a short criminal trial years before my initial engagement as a complainant / petitioner / plaintiff in a series of civil matters. I would say that everyone involved in the criminal trial, except the accused, likely felt at the time that the trial constituted due process. What I subsequently saw in civil proceedings in which I faced counsel for as many as three parties at one time never really came close to being what any sane person would call due process. Among the many conclusions I reached is that the complete lack of separation between the bar and the bench is a fundamental problem resulting, whenever a self-represented party is facing professional counsel, in no prospect of anything that looks like a level playing field. This is now the reality for many SRL’s.

    The legal establishment has no incentive to fix what’s really wrong. Read what Fred Rodell had to say in his little book, “Woe Unto You, Lawyers”. He was largely ignored at the time and for decades afterwards. But had he foreseen the Internet I believe he would have concluded on a more optimistic note.

    Which of our governing institutions in Canada today could honestly be described as healthy? They are like a forest of dead trees – all leaning on one another and waiting for a good windstorm.

  2. I think the tendency of lawyers to lead a lot of “marginally relevant evidence” (as you call at) is really at the core of what ails the civil litigation process. Keep it pithy counsel! Most cases can be adequately presented to a court in a succinct and timely manner, but for some reason (probably fear of a negligence suit as you allude to) lawyers feel the need to introduce every document and dwell on the most mundane and unimportant details of various events, dealings, etc.