The Accountability Gap and The Struggles of Our Civil Justice System Legal Ethics Column, April 22, 2021

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Conflict management systems are increasingly common within large corporations and other organizations. Workplace interpersonal disputes and bad behaviour are inevitable, but also manageable. Interests can be reconciled, rights can be upheld, and peace can be restored. A conflict management system is built to do exactly that.

Some workplace disputes call for open communication and compromise. However conflict management systems can also ensure that unacceptable behaviour — e.g. harassment, discrimination, and bullying — is corrected and deterred within an organization. Information, mediation, and arbitration are among the building blocks of a good conflict management system. Minimizing the time consumed and the stress generated by the system is key to its success.

“Tell your boss at the water-cooler or else work it out between yourselves” is not a conflict management system. To be effective in a large organization, the system must be designed and at least somewhat formalized. The design must be informed by knowledge of the local context, by the dynamics of human conflict, and by the core rights and entitlements of employees which must be upheld.

Why do executives at corporations such as Coca-Cola Inc. and General Electric invest in conflict management systems for their employees? Hopefully, the leaders of these organizations sincerely want their people to enjoy peace and justice at work. But they needn’t do it from the goodness of their hearts. Workplace conflict is very expensive and counterproductive. One 2008 study found that the average American employee spent 2.8 hours per week dealing with internal conflict. Disputes and misbehaviour generate turnover, litigation, and dysfunctional organizational culture. Profit and productivity suffer. The organization’s leaders are responsible, and may be held accountable, for the failure to design and implement good conflict management systems.

Our Justice System as CMS

Canada’s justice system is, first and foremost, a conflict management system. It succeeds to the extent that it generates peace and justice for Canadians, with low and proportionate costs for everyone involved. For certain types of dispute, the system seems to work well enough.

But when it comes to family and normal civil disputes, the system falls short. Here are a few of the “lowlights” of our access to justice crisis:

  • If you are illegally deprived of any amount less than $75k, your lawyer may well have to tell you that your claim is not worth suing for even if it seems to be a slam-dunk case.
  • Parenting disputes are still allowed to turn into World War 3. Grievous damage is done to children’s interests, all in the name of a body of law which is meant to put “the best interests of the child” first and foremost.
  • People denied benefits to which they claim an entitlement under Ontario law must wait two or three years to have their claims adjudicated in the tribunals of this province.
  • According to the World Justice Project, Canada scores well below the average high-income country when it comes to providing a civil justice system which is accessible, affordable, timely, and free from discrimination.

In a prosperous and stable country like ours, designing and funding a civil justice system that is fit for purpose should be a solvable problem. So why aren’t we getting it done?

I don’t want to lionize corporate conflict management systems — they undoubtedly have their own problems. But there is an accountability gap between private conflict management systems and our public justice system, which might help explain why we are falling short on the public side.

Divided Authority and Responsibility

A private corporation almost always has a single CEO. The buck stops at their desk. The CEO is accountable to a Board of Directors for their performance in internal conflict management, as in other things. Subordinate executives are accountable to the CEO in a similarly direct way. There is a Vice President whose job it is to make sure that the conflict management system works.

By contrast, Canada’s civil justice system is divided between many sovereign fiefdoms: provincial Attorneys-General, Chief Justices of the courts, the Federal Minister of Justice, and the Law Societies among others. Each has constitutionally sacrosanct jurisdiction over a part of the system. In many cases, real progress requires a consensus between these sovereign actors which is very difficult to achieve. When it comes to the overall functioning of the system, the A2J “buck” does not stop anywhere — it is continuously passed around in circles.

For example, redesigning our obsolete family justice system from scratch would require consensus between (i) the federal Minister of Justice (responsible for the Divorce Act), (ii) the provincial Attorney Generals (responsible for provincial family law legislation and funding for the system), (iii) the Chief Justices of the Superior Courts, whose jurisdiction over divorce is probably guaranteed by s. 96 of the Constitution Act, 1867.

Lack of Incentives and Accountability

Some improvements are possible within a single one of these constitutional fiefdoms. There is, for example, no legal impediment to the Government of Ontario appointing enough adjudicators to allow reasonably timely access to justice in the Human Rights and Social Benefit Tribunals.

However another aspect of the accountability gap is equally problematic. A corporate executive can reasonably be expected to be rewarded for their success in internal conflict management. As noted above, it pays off in the bottom line metrics of any large organization.

By contrast, the people with power to improve our public civil justice system have weak incentives to do so. Judges have absolute security of tenure and salary; they cannot be rewarded for making their courts operate more efficiently. Law society Benchers are accountable to the lawyers who elect them. They are not accountable to the laypeople whose access to justice is partially dependent on the law societies’ decisions (e.g. regarding alternative business structures and paralegal family law practice).

Does Access to Justice Pay off at the Ballot Box?

That leaves elected officials such as provincial Attorneys General and the federal Minister of Justice, as well as Premiers and Prime Ministers. In principle, democracy gives them an incentive to make the system better.

Unfortunately the electoral rewards of improving civil justice seem to be slender. Most voters are not much interested in the justice system — especially not the civil justice system. As devastating as the system’s failures can be for those who become entangled in it, the number who do so is arguably too small to be politically significant. Voters care about health care because they can imagine themselves needing it even if they haven’t actually done so recently. The same cannot be said regarding the civil justice system. Because of the division of authority noted above, neither credit nor blame seems to attach to elected officials for the functioning of the system.

One response is to emphasize that investments in civil justice pay off in terms that are more politically compelling, such as prosperity and social cohesion. This is the argument recently made by Lisa Moore and Trevor Farrow in their paper “Investing in Justice.” Measurement of justice system outcomes — user satisfaction, timeliness, expense, reliability of results — is another way to encourage accountability. A third option is for public sector actors to study, and consciously imitate where appropriate, the conflict management and dispute resolution systems which are proven to work in private and public contexts around the world.

Closing the accountability gap is not easy, in our constitutional and political milieu. However it may be essential if we want to move forward on our access to justice goals.