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

A Charter Right to Advise – Even Without a License?

Slaw.ca Access to Justice Column, February 2 2023

Found online at: https://www.slaw.ca/2023/02/02/a-charter-right-to-advise-even-without-a-license/

A new American case, Upsolve v. James, suggests that freedom of expression might protect the right of non-lawyers to offer legal advice.

In both Canada and the USA, lawyers have a near-monopoly on legal advice. If anyone tells someone else how the law would apply to their circumstances, the first person is probably deemed to be “practicing law.” That is something that only lawyers are allowed to do.

Continue reading

Justice Denied: Constitutional Remedies for Systemic Delay

Slaw.ca Access to Justice Column, December 14 2022

Found Online at https://www.slaw.ca/2022/12/14/justice-denied-constitutional-remedies-for-systemic-delay/

Justice Delayed

Suppose you run a small widget-making business in Ontario. You sent crates of widgets worth $100k to a customer, but they refuse to pay. They say there’s something wrong with the widgets, but you know this isn’t true and you can prove it. The good news is that contract law obliges your customer to pay you, and procedural law allows you to seize their assets to satisfy the debt if they don’t. The bad news is that, if you sue and the other side plays hardball, it will probably take at least four or five years to get the matter to trial. By that point, the mounting toll of wasted hours and legal fees may well have led you to abandon your claim, or settle it for pennies on the dollar. If you do persevere, there’s a good chance your defendant will have disappeared or gone bankrupt by the time you get your judgment.

Continue reading

What Makes a Settlement “Bad”? Harvey Weinstein, Jeremy Diamond, and the Limits of Private Resolutions

Slaw.ca Legal Civil Procedure Columm, October 18, 2022

Found online at: https://www.slaw.ca/2022/10/18/what-makes-a-settlement-bad-harvey-weinstein-jeremy-diamond-and-the-limits-of-private-resolutions/

“A bad settlement is better than a good trial.” Every year, I pass along this old lawyer saying to students in my Civil Procedure and Legal Ethics classes. The idea is that pushing on to a hearing is expensive, risky, and time-consuming. Even a far-from-ideal settlement might be better overall.

Thus, lawyers must “advise and encourage” clients to settle their disputes so long as there is a “reasonable basis” to do so, according to the Rules of Professional Conduct. Courts and tribunals strongly encourage settlement with mandatory mediation, cost incentives to settle, and judicial pretrials among other mechanisms.

Of course, I hasten to add in class, bad settlements are not always better than the alternative. What can make a settlement bad enough that lawyers, legislators, and judges should refuse to accept it?

Continue reading

On a Slow Train to Nowhere: Paralegal Family Law Practice in Ontario

Slaw.ca Legal Ethics Column, August 11, 2022

Found online at: https://www.slaw.ca/2022/08/11/on-a-slow-train-to-nowhere-paralegal-family-law-practice-in-ontario/

Every year, tens of thousands of Ontarians go through divorce or separation. Should these people have access to family law services provided by non-lawyers? What if these service-providers were paralegals trained in family law, insured, and regulated by the Law Society of Ontario?

Continue reading

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

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 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

Building Up the Rule of Law in Ontario – Ministerial Zoning Orders and the Ford Government

Slaw.ca Column, October 7, 2021

Found online at: http://www.slaw.ca/2021/10/07/building-up-the-rule-of-law-in-ontario-ministerial-zoning-orders-and-the-ford-government/

“Should they really be allowed to put up that building there?!” Land development is controversial, especially in areas that are growing quickly. As someone who is running for office in one such area, I have heard quite a bit about these issues from voters.

The issues are seldom black and white.

Continue reading

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

Standards, Rules, and Law’s Quest for Certainty

Slaw.ca Access to Justice Column, June 11, 2021

Found online at: http://www.slaw.ca/2021/06/11/standards-rules-and-laws-quest-for-certainty/

Law should be drafted in a way that prevents litigation. Statutes, regulations, and precedents should ideally let people predict the decisions that legal authorities would make, if presented with certain facts. If the “shadow of the law” is sharp and clear, then people can avoid and resolve disputes instead of spending time and money litigating over them.

Often, however, it is difficult to create law that both keeps people out of court, and ensures that the resolutions they reach out of court are fair and just.

Continue reading

The Accountability Gap and The Struggles of Our Civil Justice System

Slaw.ca Legal Ethics Column, April 22, 2021

Found online at: https://www.slaw.ca/2021/04/22/the-accountability-gap-and-the-struggles-of-our-civil-justice-system/

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.

Continue reading

Justice Delayed and Denied in Ontario’s Tribunals

Slaw.ca Access to Justice Column, February 16, 2021

Found online at: https://www.slaw.ca/2021/02/16/justice-delayed-and-denied-in-ontarios-tribunals/

Widespread distrust of government helped Donald Trump bring the United States to its knees. Only 17% of Americans trusted the federal government to do the right thing most of the time in 2019, down from over 70% in the 1960s. People who lack any confidence in government tend to be receptive to anti-government populist messages.

The best way to preserve public trust in government is to ensure, as much as possible, that government acts in a trustworthy way. What does this have to do with Ontario’s administrative tribunals?

Continue reading

If You See Something, Say Nothing: Why Lawyers Don’t Report to the Law Society

Slaw.ca Legal Ethics Column, December 2, 2020

Online at: https://www.slaw.ca/2020/12/02/if-you-see-something-say-nothing-why-lawyers-dont-report-to-the-law-society/

In identifying professional misconduct, legal regulators are heavily reliant on client complaints and receive relatively little help from practitioners. For example, 71% of complaints to the Law Society of Ontario in 2019 were brought forward by members of the public (typically clients) while only 12% came from legal professionals. The problem is that there are many forms of professional misconduct that only professionals, and not clients, can readily identify. Misconduct therefore goes undetected, leaving clients and others to be victimized by bad lawyers who should have been caught after previous offences.

Continue reading

Judicial Analytics: Facing Uncomfortable Truths

Slaw.ca Legal Ethics Column, October 20, 2020

Found online at: https://www.slaw.ca/2020/10/20/judicial-analytics-facing-uncomfortable-truths/

For as long as there have been judges, people have tried to predict judges’ decisions. In so doing, they have always understood that judges are human beings. They are not calculators from an assembly line, each of which will display the same result if one punches in the same inputs. Thus, at any watering hole where litigators gather, it will be overheard that “Justice Smith comes down hard on drug offenders,” or “If your client has soft-tissue injuries, you had better hope that you don’t draw Justice Jones for the trial.”

In France, it would seem that such conversations are now illegal. Loi no 2019-222 du 23 mars 2019 forbids the use of information about the identity of judges in order to evaluate, analyze, compare or predict their actual or expected decisions.[1] The Assemblée nationale was worried by the emergence of artificial intelligence applications which crunch data about prior judicial decisions, and use it to predict decisions. An excellent forthcoming Dalhousie Jaw Journal article by Amy Salyzyn and Jena McGill argues persuasively against this ban. Salyzyn & McGill also identifying the challenges and opportunities posed by the emergence of mainstream “judicial analytics” technology.

France’s ban on judicial analytics is a bad idea, but there is a noble sentiment behind it. People aspire to live under the “Rule of Law,” and not the “Rule of People.” We want, and we should want, the outcome of legal disputes to depend exclusively on the facts and the law, and not on what individuals happen to adjudicate those disputes.

Undeniably, however, there are patterns in decisions which can only mean that the identity of the judges affects the outcomes. To take a Canadian example, Sean Rehaag has demonstrated that the outcome of a refugee case before the Federal Court of Appeal depends significantly on which judge happens to hear it. Modern judicial analytics simply brings these patterns to light more consistently and quickly than lawyers’ shop-talk did in previous generations.

In the words of Friedrich Hayek, “the law cannot rule. Only men can exercise power over other men.”[2] Much as we might wish it to be so, it cannot be reasonably maintained that the law itself always makes the all the decisions, with judges merely serving as its neutral mouthpieces. France’s ban on judicial analytics is an effort to suppress this uncomfortable truth and preserve what is, at best, a noble lie. It is incompatible with the freedom of speech, and the accountability of public officials.

In addition to being misguided, the effort is probably futile in this day and age. If there is demand for judicial analytics in France, then someone will meet that demand from outside the country’s borders. We would all do better to face the uncomfortable facts that judicial analytics reveals about the nature of judging. With eyes wide open, we can work to design a justice system which, as much as possible, delivers consistent and fair results to everyone.

____________

[1] “ Les données d’identité des magistrats et des membres du greffe ne peuvent faire l’objet d’une réutilisation ayant pour objet ou pour effet d’évaluer, d’analyser, de comparer ou de prédire leurs pratiques professionnelles réelles ou supposées.”

[2] The Constitution of Liberty.