Access to Justice -
The Canadian Club of London
The Honourable Warren K. Winkler
Chief Justice of Ontario
Chief Justice of Ontario
April 30, 2008
The justice system in Ontario is as vast and multi-form as the province itself. On any given day, judges in Ontario might be flying into remote First Nations in the far north, ruling on municipal zoning issues in Ottawa, resolving custody quarrels in Hamilton, or handling a mortgage dispute over the sale of a farm near Sarnia. As I speak to you now, thousands of problems, real life problems, are being dealt with, from one end of Ontario to the other.
But, to put our justice system in context, I would like to start off by providing you with some “trivia” about Ontario and how our justice system is structured:
- There are approximately 40,000 lawyers practicing law in Ontario.
- In Ontario, there are over 1,000 judicial officers – which includes, judges, masters, and justices of the peace.
- There are 181 court locations across the province (including fly-in courts in remote northern communities).
- The Ontario courts deal with over 82,000 new civil actions each year; over 88,000 new family law matters; and receive approximately 600,000 new criminal charges annually.
Enough facts! I would hate for you to walk away wondering if I fancied myself the “Harpers Index” of Canada, so I will refocus my comments on my proposed topic – that being, “civil justice”.
The justice system meets the needs of most people more or less effectively. Unfortunately, though, for a large number of ordinary Ontarians, the civil justice system is growing more and more remote. In this ever-expanding group are those who find that the civil justice system is too expensive and too slow to provide them with any real help. Still others decide in advance that the costs, delays and complexities of a lawsuit (or even just early legal advice) are so overwhelming that they should not even bother to seek recourse in the court system. So they simply walk away from their rights; they never walk through the door of a lawyer’s office.
I do not wish to suggest that our civil justice system is a failure. There is no shortage of critics who speak of nothing besides its failings. But when they do, they distort and oversimplify. In my opinion, they fail to appreciate not only the enormous multi-faceted complexity of the civil justice system but also the many successes it has had. In truth, we are very, very good at some things. As I never tire of saying, our justice system is in some respects, the very envy of people around the world.
But I return again to the sombre fact that we are now dealing with a civil justice
system that fails to be accessible to many, and upon which pressures continue
to mount. The number of people who cannot afford a lawyer, and who are forced
to represent themselves in important legal proceedings has ballooned in the
last ten years. Chief among the reasons for this development is the cost of
litigation. Even people of ordinary means can no longer afford to pay a lawyer
to see a case through to the end.
In some parts of the province, delays have become so chronic that the system risks becoming irrelevant. At times, the problem is felt most acutely in our family law courts, where critically important issues often involving the most vulnerable members of society, especially children, should be dealt with quickly and decisively, and with as little acrimony as possible. Often, oddly, the opposite occurs.
The problem is also acute in civil cases in jurisdictions across the province where there has been an explosive population growth, and a huge expansion in commercial activities, without a corresponding increase in the resources needed to run the justice system.
These are not by any means the only problem areas. The need to reform the laws and procedures that govern conflict resolution for the average Ontarian is, or ought to be, an ongoing, pressing, priority across the justice system.
Everyone favours “access to justice”. The phrase has become a mantra with judges, government officials and Bar associations. But like so many other words or expressions, the phrase has become so commonplace that the urgency of its meaning has tended to become blunted or worn. We cannot allow “access to justice” to become a cliché, devoid of meaning and significance. We must redouble our efforts to open up our system of justice so that it serves the needs of ordinary Ontarians with real life problems. What we require is action and innovation, not platitudes.
In searching for ways to do things better, I suggest that we begin by looking to our successes. What have we done right in the past? What in our existing system can we build upon?
I suggest to you that we have already taken key steps in reducing the costs and delays of civil dispute resolution. For example, more than 60% of civil lawsuits in Ontario are now heard either in Small Claims Court, or in the Superior Court of Justice with Simplified Procedural Rules. These provide faster and less expensive mechanisms for getting cases ready for trial. Great strides have been made in making legal representation affordable for plaintiffs through the increased availability of contingency fees, and through class actions. A recent pilot project in Toronto has also succeeded in streamlining procedural rules.
A major reform which brought relief to people facing unnecessarily complicated and expensive litigation, and upon which we can continue to build, was the implementation in 2001 of simplified procedures for civil cases involving less than $25,000. This process provided for fewer pre-trial procedures and eliminated examinations for discovery. In 2002, the limit for simplified procedure cases was increased to $50,000.00.
There is a general consensus now emerging in Ontario that the simplified procedures have resulted in more cost-efficient litigation, promoted faster resolution of disputes, and allowed for more effective allocation of judicial resources. The theory behind the simplified procedure is that there is limited value to each of the many steps that are ordinarily taken in civil law suits before they proceed to trial. Often, pre-trial procedures take up time, cost money, and generally do not provide people with the final answer they so earnestly seek. Steps in a lawsuit are the means to an end. They must not be an end in themselves.
Reforms to Civil Case Management in the Toronto Region
Another thing that we happened to do right in the past took place three years ago when we made important changes to the case management system in Toronto. I mention this not because Toronto is the centre of the universe, but because the reforms worked, and because I happen to be very familiar with their principles and practical aspects, since I was serving as Regional Senior Justice in Toronto when they were introduced. Let me give you just a brief history.
In 2001, a universal civil case management regime was introduced in the Toronto Region under which every single case was to be aggressively and intensively overseen by the courts. This reform represented the most radical revision to the civil justice system in 20 years, and was designed and planned to meet and reduce escalating costs and delays once and for all. However, by mid-2003, it was widely accepted that the civil justice system in Toronto was in crisis, due in large part to problems implementing and operating the new regime.
So, in 2005, a modified, more flexible form of case management was introduced on the theory that instead of universal and intensive management of every case, there would be “case management where necessary, but not necessarily case management”.
The court now provides targeted case management for the cases that truly require court intervention. The intention was that we would reduce or eliminate unnecessary attendances by counsel, and thereby reduce costs to parties. At the same time, judicial resources were freed up to deal more effectively with the cases that were being more closely managed, and to spend more time deciding substantive disputes, and less time refereeing procedural issues. Mandatory mediation remains a centrepiece of the civil system in Toronto.
We have recently done an evaluation of the Toronto reforms and are delighted at the results. While the number of civil cases in the Toronto system remains constant, the costs to litigants and the delays in having cases heard are down. In some cases, such as masters’ motions and trials under 10 days, the reductions are dramatic. Dates for trials under 10 days are now available within less than three months and for trials (i.e. trials lasting more than 10 days), the waiting time has been reduced from approximately three years to approximately twelve months. In addition, judicial resources have been freed up for other types of legal proceedings (e.g. criminal, family and estate matters).
The rigid approach to case management that existed under the prior regime meant that all cases had to go through a number of steps before reaching trial regardless of the likely effectiveness of those steps. The principal effect of the newest reforms has been to introduce flexibility into the case management system by returning the control of the flow of the litigation to the parties and their lawyers. That is where it ought to be!
Class proceeding legislation was enacted in 1992. It too has increased access to justice for Ontarians because it provides a comprehensive procedural scheme for “group litigation”. The underlying notion is that of aggregation of similar cases through a procedure called a class action. Briefly, a class action allows one person to bring a claim for an entire group of people who are in the same position. So, for example, a consumer who buys a car with a design flaw that costs $100.00 to fix would never bother to sue to recover the money, but the consumer can sue the manufacturer on behalf of every other person in the same position and the court can fashion a remedy that compensates the entire “class” of affected consumers. For the most part, class actions depend upon entrepreneurial lawyers who fund the litigation and are only paid if and when the lawsuit is successful, but who also run the risk that they will recover nothing if the lawsuit fails.
Class proceedings have created the opportunity for minor lawsuits, which would be completely impractical if advanced on an individual basis, to be clustered together and carried forward by experienced, motivated lawyers. Many legitimate claims, which would never have been brought forward otherwise, have been recognized and addressed by the courts.
Access to Justice: Focusing on Proportional Litigation and Professionalism
What can we learn from these apparent successes? Are there any overarching principles we can extract and apply more widely across the entire spectrum of civil cases in our province?
The three examples of useful reform to which I have referred today – access to simplified procedures; flexible case management; and class proceedings – were crafted to further the principles of proportionate litigation and professionalism. Each was designed to simplify procedures, reduce litigation steps and costs for litigants, ensure legal leadership from the Bar, achieve dispute resolution more expeditiously, and afford the judiciary more time to preside over irresolvable cases. Each sought, and succeeded, in vastly improving the way some conflicts are resolved for Ontarians with real life problems.
What next then? How do the concepts of enhanced access to justice through proportional litigation and lawyer professionalism help to modernize our legal system further so as to ensure that it remains relevant to people of Ontario?
To me, the direction is clear and straightforward. We must design and put into service reforms to the civil justice system that further the ability of litigants and their counsel to carry out litigation in a manner proportionate to the monetary value, complexity, and social impact of the lawsuit. New ideas to eliminate systemic barriers to timely, affordable and fair civil dispute resolution are offered for consideration everyday by lawyers, judges, administrators and policy developers. As new initiatives are prioritized and assessed, I believe that they must be considered against the key principles of proportionality and respect for the professionalism of lawyers.
From my experience as a litigator, a trial judge, a judicial administrator and now an appellate judge, I would like to join in on the dialogue on how to improve our civil system by making the following general observations:
- Procedural rules should be the servants of substantive justice, not vice
versa. Directions on navigating the justice system must be made more understandable
to litigants. Judges and lawyers should steadfastly resist any impulse to
focus on ornate and intricate procedures that become expensive and cumbersome
to administer. We must keep our process simple.
- Every step added to a proceeding carries a cost, and must therefore be presumed an impediment to justice. If steps are added which do not in practice move cases towards resolution, they simply drain resources that litigants could better use on steps that will have greater value in the long-run. Litigants want “value for money”; mandated events in a lawsuit should be kept to a minimum.
- Cases with serious financial and emotional impact on litigants (e.g. employment and family) may well require more streamlined\simplified procedures to reduce costs and expedite resolution, regardless of the amount at issue.
- Litigants (more often than not) want to be able to instruct a lawyer, get competent representation and a fair trial
- Mediation has become an integral part of our justice system, perhaps one of the most useful tools in mitigating the access to justice problem. Litigants generally prefer a settlement that they have played a role in. Although not every case is amenable to mediation, for most lawsuits it is a powerful step, if properly timed, to early and affordable resolution of the dispute.
- There is nothing more effective in the court system than a “day of reckoning”: a specified, fixed trial date. The most constructive thing that our trial courts can provide to assist parties in resolving their disputes is to ensure that a judge is available to try the case if it cannot be settled, and that a trial date is available within as short a time as possible after the case is ready for trial. In short, a fair and just system of justice requires a courtroom, a judge and a non-adjournment policy. These in turn will produce fairer settlements or timely adjudication, and prove to be less costly to the litigants.
- Trials must be conducted in ways that make them as affordable as possible. Judges should reward in costs parties and lawyers who approach their cases in ways that reflect the actual amounts in dispute. Those who needlessly or unreasonably enlarge and complicate lawsuits should be sanctioned in costs.
- Lawyers should plan their litigation strategies to avoid unnecessary steps, confrontation and delays. Lawsuits must be conducted in a manner proportionate to the amount at stake and the complexity of the problem, as well as with regard for the societal\social impact of delayed resolution. Continuing legal education programs should promote a legal culture that values “proportionate litigation”. Senior counsel should, as mentors, provide more opportunities for junior counsel to be exposed to the efforts of experienced litigators in court.
- The judiciary should further examine how they can best assist in streamlining cases that do proceed to trial. The best trial management judges are careful to distinguish between heavy-handed, biased interference and useful, constructive, directed guidance whether the discussions are inside or outside the judges’ chambers.
Access to justice is, and continues to be, the challenge for the civil justice system. Ontario’s justice system is well served by dedicated and capable judges, lawyers and administrators. But, we can do better. We can build upon our recent successes and re-double our efforts to dismantle the barriers that continue to block our path to true “access to justice”. What is the risk of inaction, you ask? If we do not meet the challenges and come up with constructive and creative solutions to these barriers, we risk losing the public’s confidence in our justice system and, in turn, we risk loosing the foundation upon which our justice system is grounded – that being, the rule of law. By committing ourselves to the values of proportionality and professionalism, we can truly say that we are privileged to be part of the greatest justice system in the world.