Cough Boards and the Perils of Procedural Perfectionism

You’re running a fever and have been coughing for the past few days, so you head down to your local clinic. You wait and wait, and finally the receptionist calls your name.

Walking into the examination room, you’re surprised to see not one but three doctors. “We’re a Cough Board,” one of them says, “and we’re here to diagnose and propose treatment for you.”

You stare at them blankly for a second. But then you remember something you saw in a medical drama on TV. A “tumour board,” you recall, is a meeting of specialists convened to try to figure out what to do with a complex cancer case. You start to fear the worst, but then another of the white-coated folks speaks up:

“There’s no need to worry,” she says. “Your symptoms are very common, and you’ve almost certainly got either a virus, or else strep throat. We’ll work together to decide which it is, and then prescribe antibiotics if necessary, or else bed rest and fluids.”

You might be grateful, at first, to have this impressive team focused on your problem. After all, misdiagnosis is common with symptoms like yours. Three heads are better than one, and working together the Cough Board is more likely than a single doctor would be to figure it out and prescribe exactly what you need.

But soon after walking out of the examination room, you’d have second thoughts.

If this happened in Canada, you probably waited many hours to be seen at all. Why, you would ask yourself, did the system assemble a three-doctor Cough Board for your case – and presumably for other common medical complaints – instead of spreading those resources around to help more people more quickly? Wouldn’t you personally have been helped more quickly, and almost as well, if they had given you the first available physician without taking the time to assemble the Cough Board? Given that the consequences of misdiagnosis probably wouldn’t have been very severe, wasn’t the- Cough Board an irrational and wasteful exercise in perfectionism?

The answer to all these questions is yes, and that’s why Cough Boards don’t exist.

Unfortunately, it’s a different story in our civil courts. Court time, a scarce and costly resource, is sometimes lavished on certain civil cases in multi-judge colloquies and procedural motions that add little in the way of justice benefits for the parties or anyone else.

Three Cough Board Rules

Here are three bits of civil procedure that seem to consume court time out of all proportion to the justice benefit they deliver.

1. Three Judge Panels

Similar to the hypothetical Cough Boards are the real three-judge panels, convened in judicial review or appeal proceedings. The alternative would be to assign a single judge to more of these cases, letting the other two hear some of the matters stalling in the system’s crowded waiting room.

Judges who have served on panels will tell you that the conversations and multiple perspectives are fruitful and often lead to better results and reasons. This makes sense and is a good reason to keep panels for the most important cases, for example, the nine-judge Supreme Court of Canada panels for full hearings.

But the Cough Board problem is not that assigning the extra resources does no good. The problem is that the added benefit is too small to justify the cost.

Ontario’s Civil Rules Review has sensibly called for single judges to replace panels of three on many motions related to appeals. This idea can be taken further, especially in three-judge appellate courts like Ontario’s Divisional Court which are themselves subject to two further levels of appeal above and which hear many matters that can be considered less important.

Decisions about civil procedure should be based not on tradition alone, and definitely not on the comfort of system insiders, but rather on evidence about the benefits and costs of alternative approaches. How often do all the judges on multi-judge panels all agree on the outcome before they confer? In those cases, seemingly, a single judge could have done the job just as well at one third of the cost. In cases where a single judge would reach a different conclusion from the panel, and their decision can be considered an “error” caused by the absence of two colleagues, how serious are the consequences of that error for the interests of justice? Are they worse than the deprivations of justice being suffered by all the people in the court waiting room?

2. Contestable Civil Jury Notices

A civil jury is a group of six citizens who, in some provinces, determine questions of fact in certain civil trials (usually personal injury trials). There is some evidence that, in some cases, a jury can outperform a judge in finding the truth. However, it’s far from clear that they consistently do so and in other cases a judge is more likely to find the truth. There is no good reason to believe that the question of jury-vs-no-jury, in any particular civil case, will have much effect on the quality of procedural or substantive justice delivered by the system in that case.

And yet the rules in Ontario and several other provinces allow for contested motions on this question. In my civil procedure class, I teach Cowles v. Balac, where a judge’s decision to strike a civil jury was appealed and heard by a panel of three Court of Appeal judges. They spent many hours hearing the matter and writing judgments (including a dissenting opinion.). The time of the four judges involved, plus court staff, plus the lawyers’ time to develop and make the arguments, would certainly put the total monetary cost of this exercise well over $100,000 today. What was obtained for this money was not a decision about the actual substantive dispute between the parties, but rather a decision about whether or not a civil jury should have been involved in the trial.

Many jurisdictions have abolished civil jury trials and this may well be a good idea. But even if they persist, it should be possible to create a firm rule identifying the cases in which they should be present and absent. Opportunities for expensive, non-dispositive procedural fights should be scrutinized closely. The rules that allow such fights don’t just consume a lot of court time and keep people in the waiting room. They also drive up legal fees and cause contingency-billing lawyers to say “no” to more prospective clients (because they increase the number of lawyer hours that might be necessary to bring the matter to a conclusion).

3. Prejudgment Interest Rate Battles

Suppose a plaintiff suffers a $100k loss, a court orders a defendant to pay them $100k in damages, and the defendant eventually does so. If this happens four years after the loss was suffered, the $100k will not make the plaintiff whole. They were effectively required to loan the defendant this money, interest-free, for five years. They could have been using the money during that time.

Pre-judgment interest was invented to address this problem. Courts give successful plaintiffs something extra to compensate them for the time they had to wait for their damages.

But how much should it be? There are various rates mentioned, such as the 5% rate for prejudgment “non-pecuniary loss” (general damages) mentioned in Ontario’s Rule 53.10. But there’s also a lot of discretion. Judges thus find themselves hearing lengthy arguments from plaintiffs who argue they should get a higher interest rate, and defendants who submit the opposite. The Court of Appeal recently overturned two trial judge decisions setting prejudgment interest rates, restoring the default 5% in one case but allowing 8.46% to the plaintiff in the other.

The alternative would be a formula that dictates, with no opportunities to argue, what the prejudgment interest rate should be in every case. It wouldn’t be fixed at 5%, but rather a floating rate calculated based on prevailing interest and/or inflation rates, as is found elsewhere in the law.

Would this deliver inferior justice in some cases? Absolutely. The plaintiffs in Aubin presented convincing evidence that, if they had been compensated immediately after the accident, they would have invested the money and earned 8.46% given the performance of their portfolio since that date.

But the question must always be whether the cost of the more complex, more discretionary, more expensive and labour-intensive option is justified by the justice benefit it creates. Or could that court time do more good if used in a different way, on different disputes?

Perhaps accepting the prevailing interest rate on damages — which hurts plaintiffs a bit in some cases and defendants in others— is one of life’s inevitable little compromises, in a world where resources are scarce. Public resources like court time should be divided not only efficiently, but also equitably. Are litigants in “resource hog” civil cases, with multiple procedural motions and appeals, being given so much court time that other disputants can’t even get a few hours for a rough-and-ready substantive ruling?

If there were any Cough Boards being convened in our clinics and emergency rooms in the winter of 2020, there certainly weren’t any by the winter of 2022. Covid-19 forced the health care system to get smarter and more efficient in its use of resources. Many niches of Canada’s civil justice system are in a Covid-like state — way too much demand on the scarce time of professionals, and way too much preventable suffering in the waiting room. It’s time to make bolder and more evidence-based decisions about how our resources are deployed to best fight injustice.