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What’s Your Procedural Pet Peeve?

Our justice system isn’t all bad, and in some ways it’s getting better. Some things in the system might have to be difficult and complicated, because life is complicated and so is the law. But there are also plenty of things that seem unnecessarily difficult and complicated. I’m talking about things that could be fixed without a lot of controversy or money, just by thinking carefully about how they affect the system’s users.

One that has always irritated me is Rule 4 (“Court Documents”) in Ontario’s Rules of Civil Procedure. It lays out all of the technical requirements for documents used in Ontario actions and applications. (I dare you to read it through.)

One highlight of Rule 4 for me is the seven different colors of paper that must be used for different kinds of document if filed in paper. For example, “An appeal book and compendium shall be bound front and back in buff covers.” (R. 4.07(3)). (This one always makes me think of “in the buff” — an expression my grandmother used, meaning “naked.”)

Subrule 4.07(6) adds that “backsheets and covers shall be of 176g/m2 cover stock.” Am I the only one who would not know what 176g/m2 card stock is even if I were slapped in the face by it?

Of course, system insiders and repeat-players know exactly what it is and have no difficulty complying. But if you believe that the interests of those who are not insiders and repeat-players matter, then the problems created by rules like 4 quickly become apparent. Making this extremely detailed, picky requirement part of our law has the following consequences:

— civil litigation firms must pay to keep a room stocked with all sorts of different kinds of paper. They must pay someone to keep track of all the paper. Clients ultimately foot the bill.

— more generalist law firms, which don’t practice under the Rules of Civil Procedure often enough to justify the expense and headache, will outsource the task of complying with Rule 4, and pass the cost along to clients.

— self-represented litigants are confronted with a highly technical, almost impenetrable set of requirements that cause them significant stress and expense.

— Assistants and law clerks spend lots of time — adding to law firms’ overhead — trying to comply with Rule 4. Lawyers spend time — billed to their clients — checking the work of clerks to see whether they got the paper colours and weights right.

— the court can legally refuse your filing because you used the wrong kind of paper (for example Grand & Toy’s card stock which is only 147 g/m2). Real world legal rights can be lost, or at least delayed, because, to take another example, “the text [is not] typed on thirty-two lines numbered in the margin at every fifth line,” as required by Rule 4.09(3).

— The realistic fear of not successfully complying with Rule 4, and other requirements like it, scares some generalist lawyers away from helping clients with litigation matters entirely. Instead, clients are referred out to more expensive firms downtown.

And all for what? Unless I’m missing something, the purpose of much of Rule 4 is to minimize the work that court staff and judges must do in order to organize and understand parties’ submissions. If everyone complies with Rule 4 then everything will arrive at the court pre-organized.

But is offloading this work on parties really fair or just? Is it efficient, given what a source of expense and inconvenience it is for the rest of us? Given that court staff are experts with court documents, maybe they should be the ones organizing them? For a start, parties could just be allowed to submit everything on normal paper (when we can’t do it online. During COVID parts of Rule 4 are in abeyance, as parties are allowed to file electronically. But it is still law, and may come roaring back into full force when the pandemic ends. Or it might be replaced by something similarly abstruse.)

Courts are not retail businesses. But maybe they should ask themselves what retail businesses would do. Your grocery store could save its own staff a lot of time if all customers were required to submit all food orders on preprinted forms, categorized by colour based on the type of order. Anyone who wants any frozen items would have to use 176g/m2 card stock.

They don’t do this because, in a competitive market, they have to care about the experience their procedures create for their customers. So long as courts have a monopoly on justice, those who create and administer court procedures will not feel the hungry wolves of competition nipping at their heels. But maybe access to justice would take a leap forward if they were act as if they do.

Rule 4 is a picayune example. Hopefully it will become less of a headache if the pandemic drags our profession and courts into online practice. But it is definitely not the only part of our justice system that would profit from some serious user-oriented scrutiny.

What’s your procedural pet peeve? Comment below!

Comments

  1. The different appeal routes for interlocutory and final orders. Too many litigants get tripped up by the sometimes difficult (impossible?) task of distinguishing between the two types of orders.

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