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?
