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The Courts Can Help Solve the A2J Crisis — by Doing Less

In a recent edition of my Substack newsletter, I made eight predictions about what the legal sector would look like in ten years’ time. The eighth entry on that list was titled “Unfulfilled Justice”:

Universal access to justice is still a distant dream. Regulatory change has made it easier for people to become lawyers and para-professionals, so the supply side of the market is growing. But the demand side still suffers from a lack of civic education around legal rights and remedies, and legal institutions (especially the courts) have held out against change.

That last parenthetical observation about the courts prompted a Canadian Superior Court judge to write me and ask:

“Im not sure I follow why you would say that courts are against change in the A2J forum. Perhaps you mean the entire court system and not just judges? We are getting more and more self-represented litigants all the time and they are increasingly ill-equipped to advance their own interests and unsupported at the intake stage. I do not know any judge who would not welcome better support for these people.”

I thought you might be interested in (this excerpt from my very lengthy) response:

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Yes, I’m focused here on the courts as an institution, not on individual judges — the vast majority of whom, in my experience, are deeply concerned about A2J. Individual judges have very limited control over the systemic issues that are causing so much trouble when it comes to giving people access to legal processes and remedies. But it’s the institutional role of courts where I think progress could be made, and where I would like to see more conversations take place.

The fundamental problem, as I see it, is that the courts have been thrust into a role for which they are neither designed nor equipped. Courts are not “dispute resolution facilities,” no matter how much we might like them to be. They are, in their civil capacity anyway, expensive expert systems for the propagation of the common law through the exhaustive exploration and arbitration of a few individual disputes, and the early disposal of all other disputes through the intimidating spectre of final resolution on terms outside the parties’ control (i.e., “the courthouse steps”).

Putting my point a little more simply: The courts exist (in the civil context) to render justice. “Justice” is an incredibly important civilizational function that requires all the majesty and ceremony we can throw at it (the robes, the high bench, the “all rise,” the grave dignity of interpersonal address, etc.). The courts hear, ruminate on, and issue a binding determination on only a tiny fraction of all the disputes that are brought to them, and while I think it’s often for the wrong reasons, I actually think it’s the right result, because most of those disputes don’t engage “justice” at a high enough level to warrant judicial attention.

Most disputes, I think, are essentially just disagreements, and they do not require, or deserve, a judge’s time and effort. Many other disputes are important and do require the engagement of an expert system (anything to do with the children of divorce, primarily), but not this expert system. Courts are designed to render justice through zealous advocacy carried out in painstaking detail, and as we know, that’s absolutely the wrong way to determine post-divorce child-raising arrangements.

So how does all of this implicate the courts in the A2J mess? Simply, the courts should deputize some of their jurisdiction. They should’ve done this years ago.

The courts should narrow their ambit to a select number of matters important and complex enough that they truly engage both the power of judicial fiat and the peculiarly adversarial nature of the court’s mechanisms. There are sufficiently few of such cases out there that narrowing the ambit in this way would go a long way to relieving backlogs and speeding case hearings and determinations.

I understand that courts would be loathe to simply turn away disputes that didn’t meet these standards, and in fact, would probably be constitutionally barred from doing so. But they could deputize other, more appropriate entities to take these matters on, granting conditional and renewable licenses to resolve disputes through the delegated exercise of judicial powers such as the executive enforceability of decisions.

This is exactly what I proposed to every chief justice in the country when I delivered the keynote presentation to the Canadian Judicial Council’s 40th Anniversary conference back in 2012. I encouraged them to canvass the small but growing array of private dispute resolution entities and create a system by which these providers could apply for certification from the courts, based on a thorough examination of a range of factors (including expertise, fairness, reliability, and affordability). The courts could then effectively deputize providers that pass these tests to act as “private circuit courts” with renewable licenses. I think this would be an excellent idea, especially for family law cases that everyone agrees should not be in the courts.

Since then, of course, we’ve seen the development and flourishing of the Civil Resolution Tribunal in BC, and everything about the CRT — its incredible success rate, its even more incredible positive ratings from people who’ve used it, and the steady expansion of its jurisdiction — says this is an innovation that every province and territory ought to be adopting.

These, to my mind, are the kind of avenues courts should be exploring in order to address the A2J crisis — not by giving ordinary people some but still hopelessly too little assistance in navigating the austere chambers and ruthless tactics of expert-system courts where they don’t belong, but by facilitating the development of more appropriate environments for simpler disagreements and specialized social-welfare conflicts.

The courts should be in the business of dispensing justice — hosting squabbles between two (usually unrepresented) parties who are fighting over property lines or contract terms is not that. But no one can, and no one will, tell courts and judges what they should do. The initiative has to come from within the institution. The revolution has to start inside the castle. That’s what I’d like to see.

Comments

  1. Justice David Brown

    Interesting post.

    I studied in China for two years, which spanned the end of the Cultural Revolution and the transition to the Deng era.. The Red Guards’s Little Red Book contained a saying of Chairman Mao, who appropriated it from an old Chinese proverb, that “a single spark can start a prairie fire.”

    Start a revolution from the inside the castle?

    I can assure you that many have tried to spark the prairie fire but, as is evident, without success.

    Why is that so?

    After 17 years on the Bench, I haven’t come up with an answer that would support the change in direction so desperately needed by our civil justice system. I suspect a greater emphasis on concrete action than words might be part of the answer; but I may be wrong.

    Keep plugging away. The people of Ontario deserve an improved civil justice system.

    Regards,

    Justice Brown

  2. Totally agree. There must be an off ramp (as I call it) from the slow, costly, high anxiety process-driven “justice system”.
    I espouse the “expert determination ” model for civil and in particular construction and negligence claims.

    Gerald Genge

  3. The present responses to the unaffordable legal services problem are of two kinds: (1) circumvent the use of lawyers; or (2) make the best of a bad situation without changing the way lawyers produce legal services. Neither provides what will always be necessary—lawyers, but they must be affordable lawyers. The unaffordability problem is not caused by those services that take little of a lawyer’s time. It’s the unaffordability of services that require a significant amount of a lawyer’s time. They cause the great damage and misery inflicted, particularly so upon middle-income people. They are the majority of Canada’s population, its taxpayers, and its voters. Therefore, Canada cannot truly be a liberal constitutional democracy if they cannot afford to enforce their constitutional rights, freedoms, and the guarantee of the rule of law (i.e., enforce the Canadian Charter of Rights and Freedoms). Here’s how to make lawyers’ production costs much lower and therefore, their legal services much more affordable. It is not a radical, untried idea. It’s a tried and proven method; proven by me, an Ontario lawyer for more than 55 years, 9 of which I spent learning the cause and solving the problem of unaffordable lawyers’ services.
    See: Ken Chasse, “A Different Technology of Production Is Necessary to Make Lawyers’ Services Affordable” (SSRN, July 17, 2023, 47 pages); at:
    https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4389056

  4. This is very intriguing and thought-provoking. I think many family court judges would agree with you. It is not unknown for them to “deputize” others to resolve disputes especially when children are involved. In Ontario, this work is done by Dispute Resolution Officers, mediators, and lawyers or social workers from the Office of the Children’s Lawyer.

    However I am interested that you refer to the success of the Civil Resolution Tribunal in this context. So far as I know, the judiciary had nothing to do with the creation of the CRT; it is a child of the BC Legislature. Constitutionally, the CRT is an old-fashioned administrative tribunal (like the Landlord & Tenant Boards, Labour Relations Boards etc) created by a legislature to resolve a class of legal disputes more quickly and cheaply than courts can.

    For me, the lesson from the CRT’s success is that the A2J promise of administrative tribunals as alternatives to courts, first recognized over 100 years ago, is still very real. Justice can be done without judges, even in the role of deputizers.

  5. Noel, you’re exactly right — the CRT is a creature of provincial legislation, and the courts and the legal profession had nothing to do with it it. In fact, they were opposed. There’s an old post somewhere here at Slaw, back when plans to build what would become the CRT were announced. The concept received an avalanche of criticism because it very specifically excluded lawyers and judges from involvement. (I’m happy to recall I spoke up in its defence.)

    What I would like to see courts do is embrace the CRT model and encourage other provincial and territorial governments to create their own versions (it continues to baffle me why this hasn’t happened). Courts can’t offload or delegate any dispute within their jurisdiction unless they have somewhere to delegate it to. I’d be interested in the BC courts’ view of whether and to what extent the CRT has helped to ease their workload, or at the very least has kept volume from becoming overwhelming, by routing small claims, motor vehicle insurance, and strata disputes elsewhere.

    We’re not going to make even a dent in the A2J problem unless we start coordinating and collaborating not just between different levels of government, but also within different branches. The legislature, executive, and judiciary all need to play a part here. They need to get their act together now — and if the judges went first, that would help.

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