Justice

Fixing Our Convoluted, Inaccessible Court System

Until we simplify civil ligation, there will only be justice for the few

Illustration by Min Gyo Chung

The O’Hagan Annual Essay on Public Affairs is a research-based examination of the current economic, social, and political realities of Canada. Commissioned by the editorial team at The Walrus, the essay is funded by Peter and Sarah O’Hagan in honour of Peter’s father, Richard, and his considerable contributions to public life. Richard O’Hagan is a member of the Walrus Foundation’s board of directors.

Ayoung woman sits across the desk, confident yet nervous. Zeynep has been waiting for me in a busy, one-room pro bono legal clinic in downtown Toronto. (Some names have been changed to maintain confidentiality.) The clinic is tightly tucked into a first-floor corner of a University Avenue office building, and Zeynep has been here for the better part of a day. She explains that her former contractor has put a lien on her home and is taking her to court, alleging she failed to pay him for work he’s done on the property. The lien is for less than $10,000—a modest sum by the standards of civil litigation but a hugely consequential amount for Zeynep, who recently graduated from university and has few assets apart from the house she co-owns with her mother.

I explain that having the lien removed could take years and cost tens of thousands of dollars. The path of least resistance may simply be paying the contractor what he says he is owed, even though Zeynep insists he did not perform the work he claims and that the work he did do is deficient.

By the end of this day, and over the years, I have consulted with many clients who are somewhere between bewildered and terrified by the lawsuits they are immersed in. The cases have arisen from everyday circumstances gone awry, including questionable employment terminations or failure to read the details of long standard contracts. And the people mired in these cases almost always have two things in common: they cannot afford a lawyer (or;believe, often for good reason, that it isn’t worthwhile to retain one), and they don’t know how to navigate our often slow, out-of-date civil justice system.

Odds are that their experiences have been unpleasant, even life ruining. Odds are that this has been needless.

Recent reports rank Canada twentieth among twenty-four European and North American countries in terms of access to justice, and fifty-fourth out of sixty-six surveyed countries for access to legal counsel. One study notes that, in Canada, depending on court and jurisdiction, more than 50 percent of individuals represent themselves in legal proceedings, usually not by choice. Another found that over a three-year period, 11;million Canadians faced civil or family justice problems, many of which they considered serious and difficult to resolve.

There are numerous causes for our courts’ inaccessibility— from overburdened judges to wilful obstructionism, in a few cases. But a principal issue is an excessively complex system of civil procedure.

Then there is the matter of legal fees. Lawyers frequently charge hundreds of dollars an hour for their services—a daunting sum for most, and a perverse, built-in incentive for lawyers to prolong matters. In many provinces, there is no legal-aid funding available for civil suits.

Despite widespread acknowledgment within the legal community and by policymakers that access to our civil courts is badly constrained, the issue rarely receives the same attention as comparable problems in the criminal justice system. To some extent, this is understandable: civil cases don’t often make for attention-grabbing headlines. But civil litigation can upend lives. As Thomas Cromwell, a retired Supreme Court justice, has pointed out, when the cost—in time and in expense—of obtaining a legal service exceeds its value, we have a serious problem.

More than 800 years ago, the Magna Carta codified legal rights and practices in England. Among its provisions were several aimed at improving access to justice by formalizing a dispute-resolution process in which judges travelled across the country dispensing the king’s justice when precedents recognized that one party had committed a wrong for which another was entitled to redress. If John killed Richard’s cow, for instance, a judge could order John to compensate Richard for the value of the cow—making Richard whole again and curbing vigilante justice. By requiring common-law courts to meet at established times and places, the iconic document helped create a more regular system of civil litigation.

Such courts could generally only award financial compensation, even if justice was best served by other remedies, such as compelling someone to cease a;particular behaviour. A separate system developed to handle these situations: the Court of Chancery, which had the power to issue equitable remedies such as injunctions. By the 1800s, the two courts had been running separately for centuries—all in addition to a criminal court system that had its own procedures and binding precedents. Few lay people understood the technicalities, and the complexity of the legal system made it nearly impossible for many people to get a fair hearing.

Civil courts in Canada, largely modelled on the English system, inherited these difficulties. A series of late nineteenth-century reforms created unified civil court systems in both countries and helped for a time. In the years since, however, new procedural steps have been added, each of which individually could be said to increase the likelihood of a fair resolution but which, taken together, often add disproportionate time and expense. At the same time, the system assumes that a trial is the gold standard for adjudication, when it is often unnecessary. The upshot: Canada’s civil litigation process is, once again, too frequently the obstacle rather than the path to resolving matters quickly and fairly.

When a drunk Marco Muzzo got behind a wheel of a car in September 2015 and killed the three children of the Neville-Lake family along with their grandfather the public was outraged. Muzzo pleaded guilty to four counts of impaired driving causing death and was sentenced to ten years’ imprisonment. The crash in Vaughan, Ontario, is an example of a situation where a criminal act could also entitle the victims to a;civil remedy, and the Neville-Lake family has launched a lawsuit against Muzzo.

But not all crimes have a victim who can seek financial compensation (drug trafficking and gun possession jump to mind), and most civil cases do not involve events that can lead to criminal charges: car accidents are often “just” accidents, and breaching a contract is not a crime at all.

Civil and criminal cases can cover the same subject matter, in other words, but frequently do not. Nor do they serve the same purposes. The civil system’s aim is to compensate victims; criminal conviction expresses society’s condemnation of, and desire to prevent, dangerous, harmful, or immoral behaviour. In doing so, the criminal system puts an accused individual’s liberty at stake, and the consequences of a wrongful conviction can be calamitous not just for the convicted but for the public’s faith in the criminal justice system as a whole.

It is therefore natural that criminal and civil procedure have evolved quite differently. There is a constitutional right to counsel, and to a speedy trial, for people accused of crimes but not for defendants in civil suits. The standard of proof in each system is also significantly different: beyond a reasonable doubt for criminal conviction, while a civil suit need only be proven on the balance of probabilities—essentially, “more likely than not.” This means the threshold for pursuing a civil case is lower. But the lower standard can make both claimants and defendants feel they stand a chance, increasing the number of cases in the system.

In addition, while only the prosecution needs to lay out its evidence in advance in a criminal case, all parties must go through the time-consuming discovery process in a civil action. Discovery—a preliminary procedure in which parties in a case exchange documents and often provide testimony—can help lead to well-informed settlements and ensure that, if a trial is needed, no one is surprised by the evidence presented there. Once quite modest in scope, in recent decades there has been a push to expand the use of discovery in civil cases. Unfortunately, this has backfired to some extent, making many civil suits immensely time-consuming and expensive. As the system lags, memories become stale and evidence less reliable, decreasing the likelihood of a fair resolution.

Eftihios markoulakis had worked as a civil engineer for SNC-Lavalin for more than forty years but lost his job there at the age of sixty-five; the company let him go due to a shortage of work. Markoulakis tried unsuccessfully to find another job. He filed a suit for wrongful dismissal and asked that his former employer provide adequate compensation in lieu of having given him notice of termination.

A full-fledged civil suit would have required drafting pleadings, going through discovery, and, ultimately, proceeding with a trial. But the facts surrounding his dismissal seemed clear. Was a trial after full discovery appropriate, much less necessary? As it turned out, no.

There is a way to expedite matters, which Markoulakis pursued. Judges can grant a summary judgment after a lawsuit has been filed, deciding all or part of a case without a trial. Historically, this was very rare. But in a 2014 ruling, the Supreme Court of Canada clarified that courts are to interpret the power to issue summary judgments broadly, specifying that this is to help ensure access to justice. The Ontario Superior Court of Justice granted Markoulakis’s motion for summary judgment in 2015, awarding him twenty-seven months’ pay.

Not everyone is pleased with the increasing use of summary judgments. Some judges have noted that it’s impossible to fully digest the evidence in some cases without a trial. Moreover, motions for summary judgment rarely feature in-court testing of a witness. While this process is an imperfect measure of credibility, it does have merit: criminal defence lawyers repeatedly emphasize that they need to see a witness’s face, observe their demeanour, and ask follow-up questions in order to effectively assess their claims.

David Rankin, a litigator at Osler, Hoskin & Harcourt in Toronto, supports the greater reliance on summary procedures but has some reservations about the disappearance of civil trials. Not being able to cross-examine key witnesses in a;criminal trial would “likely be declared unconstitutional,” he says. “If a practice is unconstitutional in the criminal context because it impedes the search for truth, surely we should have some reservations about adopting it in the civil context.”

Despite these misgivings, which many lawyers share, there is some evidence that the expanded use of summary judgments is making civil courts more effective. Brooke MacKenzie, of MacKenzie Barristers in Toronto, recently studied how litigants and the courts responded to 2010 summary-judgment reforms in Ontario, which led to an increase in the number of summary judgments granted. “The overall number of proceedings . . . remained similar or decreased after 2009,” she says. “So it is safe to say that the increase in summary-judgment motions represents civil disputes that were diverted from trial.” Other provinces have also heeded this call. Alberta and British Columbia, for instance, frequently use summary trials, where many of the traditional formalities are dispensed with.

This gets at a broader principle: the simpler a legal process is, the cheaper it can be—and the less those involved need to rely on lawyers.

Given the dearth of legal-aid funding for civil cases, many people turn to;pro bono;services to help resolve their disputes. Pro Bono Ontario, to take one example, serves about 20,000 clients each year. It was at one of those projects that Ottawa lawyer Joseph Griffiths met Camille, a;seventy-eight-year-old widow receiving Old Age Security benefits. A;door-to-door salesman had allegedly pressured her into buying a vacuum cleaner that she could not afford. Her file was referred to a collections agency after she stopped making payments on the purchase, and that agency then sued her. When she went to see Griffiths, Camille was on the cusp of accepting a settlement that might have left her unable to afford groceries. Griffiths reviewed Camille’s case and got in touch with the collections agency. By the close of business that same day, and with less than three hours of his work, the agency withdrew the claim.

Matt Cohen, director of litigation projects for Pro Bono Ontario, is convinced that such services—explaining procedures, assembling documents, and providing summary advice—can enable many people to address issues more quickly or on their own, freeing them from the need to formally retain a lawyer. “Legal advice is essential,” he says, “but the reality is that many everyday legal problems can be resolved with a single phone call to a lawyer.”

Thousands of Canadians wind up in civil disputes each year. Most of these cases do not warrant the blunt instrument of a lawsuit or require the full services of a specialized lawyer. Lawyers can offer summary help in some cases; in others, their services may not be needed at all and other professionals can step in to help.

Kyle Risby was born and raised in Yukon and is a member of the Tahltan Nation. When he was a teenager, Risby watched as his grandfather entered a land dispute with a mining company—the dispute, which is still before the court, inspired Risby to tell his grandfather that he wanted to be a lawyer. His grandfather just laughed.

Risby was undeterred. Although he has not become a lawyer, he was only twenty-one when the Council of Yukon First Nations hired him as a court worker. In his time there, he assisted hundreds of Indigenous people in Yukon who were struggling with civil justice problems.

Risby notes that access to civil justice is a particular problem for Indigenous communities. “Lots of people are hesitant to approach the court as an Aboriginal person,” he says. Although the civil courts have been Indigenous peoples’ “best friend” on macro-level issues, such as land claims, Risby says the stress, time, and expense of bringing a claim in individual cases can be far too daunting. Distance presents an extra challenge to people from remote communities. “If disputes arise, you need to get a ride to Whitehorse and usually spend a night in a hotel. The hotel and gas means you’ve likely spent $300,” he says.

In northern and rural communities, there are frequently only one or two judges covering geographically vast areas where it can take hours to fly, much less drive, to a courthouse, further slowing the process down and posing problems for Indigenous and non-Indigenous residents alike. The small number of lawyers also creates difficulties. “We have about 130 practising lawyers in Yukon, and all but one are in Whitehorse,” says Geneviève Chabot, a former president of the Yukon branch of the Canadian Bar Association. “Dawson City is five hours by car. Old Crow is fly-in only. Getting a lawyer in civil matters can be very difficult.”

Risby, now twenty-four, served with Cromwell (the retired Supreme Court justice) on a national action committee on access to justice and describes a particularly important role for professionals such as himself. “Non-lawyers see the problem and try to help the problem before it gets that serious,” he says. He highlights mediation—frequently used in major urban centres but not commonplace in remote communities, where there are fewer mediators—as a potential way forward. “This could be an accessible one-stop shop for many cases,” he says.

In addition to the role non-lawyers can play, Risby points to an effort to simplify the forms required to start a civil action in Yukon, with questions in plain language directing individuals to the next steps in a civil process—a tactic born of the difficulties caused by distance, but which may be useful more generally. In the same vein, Chabot describes the courts as “getting better and better in using technology in providing people with access to justice. It’s not a perfect system, and it’s not working all the time. But actors in Yukon are aware of difficulties in physically accessing judicial systems, and there is more flexibility in trying to accommodate people when trying to access civil justice when they need it.”

Not everyone needs it, though. In 1997, a man named Dimitre Pagourov spilled some chemicals on himself while working at Exploranium G. S. Ltd., a Toronto-area chemical company. Later that year, he began suffering from a skin disease and developed other illnesses, causing him significant pain and affecting his ability to work. He filed a complaint against the company with the Workplace Safety and Insurance Board, alleging that his health problems were triggered by that spill and other workplace conditions. The WSIB investigated his claim and, finding no evidence that his workplace conditions caused Pagourov’s health problems, dismissed it.

Apparently unable to accept that outcome, Pagourov then filed suit against both the company and the WSIB, which the court dismissed. So he commenced another action. And another.

Pagourov’s string of suits—one which a judge described as “a pattern of relitigation of issues already determined by the court”—makes him an example of what is called a vexatious litigant. There are a relatively small number of such claimants, but they cause a disproportionate number of problems for the civil justice system. (Relitigation is only one among several reasons the court might declare someone a vexatious litigant.) In some cases, a litigant can effectively shake down a defendant, and as legal fees mount, it can make more sense to simply pay the litigant to go away.

Cases such as Pagourov’s cost thousands in public dollars and prevent others from having their day in court. In order to protect complainants’ rights, the procedure to declare people like Pagourov a vexatious litigant is elaborate. In this case, it took seven years from when he launched his first suit.

To respond to this problem, Ontario enacted a new rule in 2014, allowing a court to dismiss a proceeding without a hearing. It has been used to handle cases where plaintiffs have sought to relitigate issues or where an action is manifestly frivolous. (In 2015, the courts dismissed a claim in which the plaintiff sought $100,000 from the City of Toronto for being “illicitly targeted” by lifeguards who allegedly called him out for swimming too slowly in the fast lane at a municipal pool.) Given its usefulness in declogging the system, this rule should be applied more frequently, with courts taking a preliminary look at suspect claims. Justice Frederick Myers, the author of several prominent decisions issued under this rule, told young lawyers at a recent conference that he instructs court staff, “If you get a claim and it’s written in crayon, call me.”

Bertha wilson, a former justice of the Supreme Court of Canada, remarked that “Change in the law comes slowly and incrementally; that is its nature.” In the 1870s, the Judicature Acts sought to reform the system of civil procedure in England and Wales, which had been designed in the Middle Ages. Though Canada followed suit, the circumstances in which individuals and businesses find themselves have continued to change immensely. Our civil courts have not kept pace.

We need procedures for civil litigation that emphasize three principles: simplicity, speed, and affordability. There is no one-size-fits-all solution. Zeynep found herself in a different situation than Markoulakis, whose situation was different again from Camille’s. But lawyers, judges, and other legal professionals should routinely ask themselves: Is this case being resolved quickly? Is it being handled in the most cost-effective way? And is the law, procedural and substantive, easy to understand and apply? We must focus on making the system reasonably accessible and prioritize the needs of those caught up in it.

I spoke with Zeynep recently to find out how her case ended. It was with a relatively quick, if unsatisfying, settlement: though Zeynep still insists her contractor was not entitled to any compensation, she agreed to give him some in the name of moving on. In retrospect, she is ambivalent. “To be honest with you, I wish I didn’t settle it,” she says, regretting that she hadn’t been able to take the case further. “I was going through a lot of;stress.”

I am glad that the litigation did not ruin her life. But when “not life ruining” is considered a qualified success, we can do better.

Gerard J. Kennedy is a lawyer and a 2016 Pierre Elliott Trudeau Foundation Scholar.

Min Gyo Chung (mingyochung.com) counts Corporate Knights, Cottage Life, and The Sunday Times Magazine among his clients.

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