Courting Culture Change for Access to Justice

Forthcoming, Slaw.ca, October 2024

Why are some restaurants great, while others are so lousy?  The great ones don’t usually have better ingredients in the kitchen, or better written policies, or even more talented people. 

Usually, they have better culture.  The folks leading and working in great restaurants have developed expectations, attitudes, and social practices that produce terrific results, night after night.

What if the same is true of justice systems?  Maybe culture is the reason why some courts, tribunals, and segments of the bar consistently produce substantively just outcomes after processes that are quick, affordable, and procedurally fair.  And maybe culture is the reason why others don’t.

This isn’t a new idea. “A culture shift is required,” as a unanimous Supreme Court of Canada wrote in Hryniak v. Mauldin 10 years ago,  “to create an environment promoting timely and affordable access to the civil justice system.” 

Decision Points in Practice

But what does culture actually look like on the ground in litigation practice?   Here are a few examples:

  • Parties sometimes disagree about whether or not all relevant documents have been disclosed.  Culture determines whether they (i) pick up the phone and really try to hash out a compromise, or (ii) quickly resort to a motion, which might take over a year and tens of thousands of dollars. 
  • Culture determines whether advocates internalize and act on their duties as officers of the court, as opposed to chasing every possible advantage for their clients regardless of impact on the administration of justice.
  • Sharp practice”  occurs when lawyers “take advantage of or act without fair warning upon slips, irregularities, or mistakes” of their adversaries.  This makes it much harder for matters to be resolved on their merits.  Self-represented litigants are especially vulnerable to sharp practice by lawyers across from them on files.  In a healthy litigation culture, sharp practice damages a lawyer’s reputation.

Why Culture Matters

How practitioners answer these sorts of culturally-laden questions has a huge effect on whether or not just outcomes are consistently reached at a reasonable cost in time, money, and aggravation.

Culture isn’t really about individual behaviour patterns that can be manipulated through incentives, punishments and rewards. It’s a social concept. It’s about how humans see and evaluate the behaviour of others, and what we feel motivated to do in order to be perceived positively by peers and authority figures.

The Barrel of Apples

One way to improve culture is to remove “bad apples” who infect the culture of the “barrel” that is the practice niche or court. This is challenging in civil justice. Lawyers who foster delay and use procedure cynically – but keep on bringing in billings and clients – are not likely to leave the system. For constitutional reasons, judges can only be removed or corrected for offences far more egregious than simply tolerating or encouraging problematic culture.

A more drastic way to create better culture is to start from scratch.  A restauranteur who identifies an entrenched dysfunctional culture in their restaurant is likely to close shop and relaunch. Likewise, creation of new tribunals, designed from the ground up and thoughtfully endowed with great leadership and culture may be a promising option. BC’s Civil Resolution Tribunal – at least in its original incarnation – may be a good example of this strategy.

Culture Change Led by the Bench

What about changing culture through landmark judicial precedents?  In Hryniak, where the SCC diagnosed our civil justice culture problem, they also proposed a remedy: making summary judgment a more flexible and easier-to-obtain resolution.  Unfortunately, is hard to see any evidence of culture improvement in Canadian civil courts resulting from Hryniak. On the other hand, Jordan, the SCC’s procedural landmark on the criminal side, does seem to have tangibly moved the dial on times-to-disposition.

Legislating Culture Change

Another possibility is to create new rules in order to change culture.  Heather Douglas saw culture shift goals manifested in the 2020 Practice Direction for Toronto Civil Matters, and in subsequent cases.  Deanne Sowter observes that 2021 reforms to the Divorce Act were meant to foster a culture of settlement in most family law cases.

Ontario recently launched the Civil Rules Review (CRR), an ambitious effort to reform the Rules of Civil Procedure.  The CRR’s first report calls for a “shift in litigation culture.”   It calls out “motions practice culture” — a tendency to resort too quickly to court for procedural squabbles that could be worked out consensually.  It floats ideas such as capping the number of procedural motions a party can bring in a case, and creating a presumptive mandatory inference when a party has improperly refused a discovery question or request.

“A culture of compliance” with deadlines and timelines is also sought by the CRR, perhaps through strengthening the penalties for non-compliance.

Can we shift culture by changing rules?  

What do you think?

Tribunals for Access to Justice in Canada

Forthcoming, Canadian Bar Review

Tribunals have great potential to improve access to justice in Canada, and the goal of this article is to better understand this potential. It begins by defining “tribunals” and “access to justice,” the key concepts of this article. Because tribunals and trial courts are functional alternatives for the resolution of many legal disputes, the article first reviews the merits of Canada’s trial-level courts in terms of creating access to justice. It then turns to tribunals, reviewing some objective evidence of tribunal excellence in this regard.

Four key attributes of tribunals make them advantageous alternatives to trial-level courts for the accessible and just resolution of many types of legal dispute. First, tribunals are specialized instead of having general jurisdiction. Second, tribunals apply teamwork to dispute-resolution, instead of assigning all responsibility to individual adjudicators. Third, healthy forms of accountability are easier to establish in tribunals than they are in courts. This includes accountability of individual members to the tribunal and accountability of the tribunal to the legislature that created it. Finally, tribunals can be designed for maximal performance in creating access to justice, by contrast to courts which, for good reasons, resist design or reform efforts coming from outside themselves.

The final Part of the article argues that tribunals can advance access to justice not only by taking on dispute-resolution work that courts would otherwise do, but also by offering authoritative legal vindication of rights that would otherwise be abandoned, or resolved in a completely privatized way. The tribunal promise of accessible adjudication can also be expected to improve the quality of settlements, in terms of upholding parties’ substantive legal rights.

Full text (draft) : Tribunals for Access to Justice in Canada

Systemic Racism, Clients, and the Law Societies

Slaw.ca, December 2023

Systemic racism is a reality in Canada.  At many junctures in life, a person’s access to opportunities and fair treatment will be affected by their race, skin colour, or indigineity.  The legal profession, in order to do its essential work in our society, must recognize and confront systemic racism.

So far, most formal efforts to do so have focused on racism’s effect on lawyers, law students, and others who work in the law.  (See for example the action plans from the law societies of BC and Ontario, as well as Alberta’s “My Experience” project). These are worthy and very important efforts.  But something might be missing: attention to the effects of systemic racism on actual and would-be clients.

Continue reading “Systemic Racism, Clients, and the Law Societies”

Adjudicative Tribunals: In Need of Friends in High Places

Slaw.ca Legal Access to Justice Column, April 19 2023.

Found online at: https://www.slaw.ca/2023/04/19/adjudicative-tribunals-in-need-of-friends-in-high-places/

Each year, over 100,000 Ontarians seek justice from Tribunals Ontario. This group of people —the size of a small city— includes tenants, landlords, motor vehicle accident victims seeking insurance benefits, people denied disability benefits, and those who believe that their fundamental human rights have been infringed. This group of 100,000 is significantly larger than the number of plaintiffs who start civil lawsuits in the Superior Court of Justice each year. The numbers are similar in other provinces. For most civil rights, tribunals are Canadians’ first and only opportunity to seek authoritative dispute-resolution and enforcement.

Continue reading “Adjudicative Tribunals: In Need of Friends in High Places”

Better Access to Better Justice: The Potential of Procedural Reform

Canadian Bar Review, Vol 100, No. 2

Improving access to justice is often identified as a goal of reforms to legal procedure. What does access to justice mean in this context? This article proposes that “better access” and “better justice” should be understood as distinct but overlapping goals. Access improves when procedural costs confronting litigants are reduced. Justice has three qualities—substantive justice, procedural justice, and public justice—which legal procedure can produce to a greater or lesser degree. Although access and justice are sometimes in tension as goals for procedural reform, they are also harmonious. Better access to better justice is a worthy goal for procedural reformers. Welfarism is introduced in the final part of the article, as a way to focus access to justice reforms and make the necessary tradeoffs. This article’s argument is illustrated by three procedural reform trends—mandatory mediation, smaller-dollar procedure, and inquisitoriality.

Full text: https://cbr.cba.org/index.php/cbr/article/view/4772

Civil Procedure and Practice in Ontario, Vol. 2

I’m delighted to announce that the updated 2022 edition of Civil Procedure & Practice in Ontario is now live at https://www.canlii.org/en/commentary/81787.

We are also grateful to our publishers CanLII, and in particular the team of Sarah Sutherland, Alex Tsang, and Alicia Lazear.  Assistant Editor Sheldon Leung and our Windsor Law editorial team (introduced below) were essential to the success of this project. 

Online and In-Person Hearings: The Best of Both Worlds

Slaw.ca Civil Procedure Column, June 9, 2022

Found online at: https://www.slaw.ca/2022/06/09/online-and-in-person-hearings-the-best-of-both-worlds/

For a while during the pandemic, online hearings were the only option for courts and tribunals. Justice was done on Zoom, or else it wasn’t done at all.

Now, as we emerge from the age of Covid (knock on wood!), online vs. in-person is a recurring controversy across Ontario’s justice sector. After the Superior Court of Justice ordered most contested family law matters to return to court, a group of family bar lawyers organized in defence of the online option. By contrast, the Landlord and Tenant Board is insisting on fully online practice, while the Advocacy Centre for Tenants Ontario states that “going digital has been a failure” and calls for a return to in-person hearings. The online vs in-person controversy is also litigated on a case-by-case basis. For many civil trials, in the absence of party consent an expensive procedural motion may be necessary to resolve the question of online vs. in-person.

Continue reading “Online and In-Person Hearings: The Best of Both Worlds”

Justice at Tribunals: At the Government’s Whim

Slaw.ca Access to Justice Column, April 7, 2022

Found online at: https://www.slaw.ca/2022/04/07/justice-in-tribunals-at-the-governments-whim/

Suppose that “JM” is a Canadian person, who believes that their legal rights have been infringed. The problem might have arisen at work, at home, with a corporation, or with some part of the government. JM has tried to resolve the matter privately with the other side, but got nowhere. Next, JM did some online research and perhaps spoke to a lawyer. It turns out there is a public body that’s supposed to make decisions, and uphold rights, in disputes like JM’s.

Continue reading “Justice at Tribunals: At the Government’s Whim”

Justice in Your Neighbourhood?

Slaw.ca Access to Justice Column, December 22, 2021

Found online at: http://www.slaw.ca/2021/12/22/justice-in-your-neighbourhood/

I live in Etobicoke, Toronto’s western suburb. We used to have our own courts, right here in the west end. There were family and criminal courts at 40 East Mall, and a Landlord Tenant Board outpost on Dundas Street West. Just over the Humber River, in the original City of Toronto, there was a Small Claims Court on Keele Street (pictured above). People asserting civil rights, or facing criminal charges, could visit a courthouse in their own community.

Nowadays, there isn’t a single physical court or tribunal of any kind in Etobicoke.

Continue reading “Justice in Your Neighbourhood?”

What’s Your Procedural Pet Peeve?

Slaw.ca Civil Procedure Column, August 13, 2021

Found online at: http://www.slaw.ca/2021/08/13/whats-your-procedural-pet-peeve/

Our justice system isn’t all bad, and in some ways it’s getting better. Some things in the system might have to be difficult and complicated, because life is complicated and so is the law. But there are also plenty of things that seem unnecessarily difficult and complicated. I’m talking about things that could be fixed without a lot of controversy or money, just by thinking carefully about how they affect the system’s users.

One that has always irritated me is Rule 4 (“Court Documents”) in Ontario’s Rules of Civil Procedure. It lays out all of the technical requirements for documents used in Ontario actions and applications. (I dare you to read it through.)

Continue reading “What’s Your Procedural Pet Peeve?”

The British Invasion: Legal Services Regulation Edition

Slaw.ca Legal Ethics Column, April 10, 2020.

Found online at: http://www.slaw.ca/2020/04/10/the-british-invasion-legal-services-regulation-edition/

Bringing British things across the pond is a hot Canadian trend. Prince Harry and Megan Markle are now our most famous immigrants. A Canada-U.K. free trade deal has apparently become a post-Brexit priority. And the Downton Abbey movie has raked in hundreds of millions of dollars from my parents and their friends.

While we’re at it, we should copy at least three aspects of legal services regulation as practiced in our erstwhile mother country. The U.K. has swept away many of the outdated and unnecessary restrictions on legal services that we still cling to. The payoff is better access to justice, without any apparent diminution in quality or ethics. Continue reading “The British Invasion: Legal Services Regulation Edition”

Dispatches From the Front Lines of Canadian Legal Ethics

Slaw.ca Legal Ethics Column, December 16, 2019.

Found online at: http://www.slaw.ca/2019/12/16/dispatches-from-the-front-lines-of-canadian-legal-ethics/

On October 25 & 26, Windsor Law proudly hosted the 2019 conference of the Canadian Association for Legal Ethics. The presentations touched on many of the most important issues confronting the legal profession today. Check out the brief summaries below to stay up to date. Continue reading “Dispatches From the Front Lines of Canadian Legal Ethics”

Collegial Reputation and Peer Rankings: An Invisible Hand?

Slaw.ca Legal Ethics Column, January 31, 2019.

Found online at: http://www.slaw.ca/2019/01/31/collegial-reputation-and-peer-rankings-an-invisible-hand/

Suppose you have practiced law for many years in the same community. You are shown a list of other lawyers who do the same sort of work as you, in the same area. You probably have an opinion about most of the names on the list. Favourable or unfavourable impressions will have accumulated from your interactions with them on files, your observations of their work, and other colleagues’ comments to you about them.

Of course, they also have opinions about you. Your collegial reputation is the sum of the opinions about you held by others in your community of practice.

Collegial reputations are not necessarily fair or well- deserved. They may reflect prejudice or irrelevant factors, rather than the real qualities of someone’s work. Nevertheless, within professions like law, colleagues are relatively well placed to evaluate the many aspects of value that are invisible to clients. Continue reading “Collegial Reputation and Peer Rankings: An Invisible Hand?”