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.
For a list of Professor Semple’s publications as of July 2020, please click below.
Hosted by The Etobicoke Voice
Real talk on Safety and Well-Being in our Neighbourhoods
With PC Marco Ricciardi, local Crime Prevention Officer from the Toronto Police Service, 22 Division
and Jasminder Sekhon, Director of Community Engagement, Victim Services Toronto
Come with your questions on safety, crime, and victim services
Free Event | Refreshments Served | Door Prizes
Monday, June 16th, 7:00 to 8:30 p.m.Plast Huculak Auditorium, 516 The Kingsway (at Kipling) RSVP: TheEtobicokeVoice@Gmail.com
Forthcoming, Advocates’ Quarterly.
Downloasd at SSRN: https://ssrn.com/abstract=4907051
The Civil Rules Review (CRR) has proposed a thorough rewrite of Ontario’s Rules of Civil Procedure. The goal is to make civil litigation speedier, more affordable, and less complex. The CRR’s April 2025 Consultation Paper makes dozens of reform proposals, affecting every major phase of the litigation process. This short paper argues that the leaders of Ontario’s civil justice system should take the time to look before they leap. To implement changes by the end of 2025, as proposed by the original Terms of Reference for the Civil Rules Review, would be dangerously and unnecessarily premature. The consultation phase (currently just 10 weeks) should be extended, and a methodologically rigorous empirical evaluation should be conducted. This evaluation should be informed by a solid theoretical understanding of civil litigation’s benefits and costs; the middle section of this paper briefly sketches such a theory.
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Review of Benjamin Perrin, Indictment: the Criminal justice System on Trial. Toronto: AEVO UTP, 2023.
By Noel Semple[1]
Lady Justice can often be found, in statute form, in or near courthouses. This symbol of the Western justice system is blindfolded to show neutrality. She carries a scale, to weigh facts and arguments fairly. Sometimes she also holds an olive leaf, to symbolize mercy and healing. A sword is the other accessory that Lady Justice invariably carries. The sword is a ubiquitous part of this symbol because most people believe that justice in general, and criminal justice in particular, necessarily involves inflicting pain upon wrongdoers.
Benjamin Perrin’s provocative new book Indictment is a call to leave the sword of justice in its scabbard. Perrin, a Professor at the University of British Columbia Faculty of Law, argues that Canada’s criminal justice system is “fundamentally flawed,” because its objectives cannot be met by the painful and coercive techniques that it uses.[2] Perrin offers a new vision for criminal justice based on healing trauma, recentering victims, abolishing traditional prisons, and empowering indigenous Nations.
The book opens with a theory of crime’s origins. Trauma, Perrin argues, is crime’s “cause of causes.”[3] Painful life events, especially those that go untreated and unaddressed, lead to substance abuse and mental health problems. Those, in turn, are the proximate causes of most criminal acts. For example, 70% of federal offenders nationwide have substance abuse problems, and three in ten of the calls leading to police dispatch in Edmonton are related to mental health crises.[4] Adverse childhood experiences such as food insecurity and housing instability are particularly likely to set someone on the path to offending.[5] “Hurt people hurt people,” as Perrin explained to a journalist.[6]
Perrin mounts a direct challenge to criminal justice system orthodoxy. Deterrence, denunciation, and rehabilitation are among the primary stated objectives of the system in Canada.[7] The basic idea of deterrence is that Lady Justice’s sword scares people into staying within the bounds of the law. When they don’t, using the sword to inflict a wound proportionate to the offence is inherently the right thing to do, at least according to retributive theories of justice.[8] The painful punishments are also said to reassure and satisfy victims and members of the public who are offended by the crime. This reduces the chance that people will “take the law into their own hands” through vigilantism. Finally, to round out the traditional theory of crime and punishment, imprisonment and supervision of offenders give the state an opportunity to rehabilitate them.
However Perrinargues that because trauma is the real root cause of most crime, punishing its perpetrators is no more sensible than using a sword to beat back the ocean’s tide. A person experiencing a psychotic break from reality, who lashes out at someone she believes to be a demon, cannot be deterred from that behaviour by the threat of punishment. She does not deserve to be denounced, and incarcerating her without proper treatment has no chance of rehabilitating her.
Perrin argues that the overwhelming majority of criminal acts are fundamentally unsuitable for deterrence or denunciation. Offences committed by people with mental health problems — even when psychotic delusions are not involved — merit a response from the health system, not the criminal justice system.[9] The idea that using illegal substances is a matter of personal choice, which can fairly lead to criminal justice consequences, is mistaken in Perrin’s account.[10] In the absence of personal choice, neither denunciation nor deterrence of substance-related offences makes sense. Rehabilitation through the criminal justice system is also an empty promise, given how overwhelmingly painful incarceration is and how poor a job the system often does of getting people back on their feet.[11] Perrin sees an uncaring revolving door that moves people with mental health and substance-abuse problems through the system, back onto the street, and then inevitably back inside.[12]
Nor, Perrin argues, is Lady Justice’s blindfold securely attached. Black and indigenous people are overpoliced, overcharged, and over-incarcerated relative to others.[13] They are vulnerable to mistreatment by police and prison guards, and they have little recourse when this comes to pass.[14] Meanwhile punishments such as solitary confinement fall far more heavily on people with mental health conditions than they do on others, putting the lie to the idea of proportionality in penalties.[15]
Perrin acknowledges that he is not the first to identify these problems with the Canadian criminal justice system, and he acknowledges that efforts have been made to respond to them. However, he is unimpressed by these efforts. “Problem-solving” courts – drug court, alcohol court, mental health court – seek to deploy multidisciplinary teams to address the problems that led to offending behaviour.[16] They waive or reduce punishments for those who acknowledge their problems and commit to addressing them under court supervision. The basic principle behind these courts is that Lady Justice will offer an offender the olive branch, while still brandishing the sword in her other hand in case her conditions are refused. However Perrin argues that the commitments to abstinence and treatment demanded in problem-solving courts are unfair and unrealistic. Moreover, the premise of a problem-solving court is that the “root problem” is a substance or a mental health problem, when in fact, he argues, the root problem is usually trauma.[17]
Nor is Perrin satisfied with the system’s reform efforts regarding indigenous people. The Supreme Court of Canada’s proclaimed efforts to reduce indigenous incarceration through the Gladue and Ipeelee precedents have had little success, he writes.[18] Over the quarter-century since Gladue, the proportion of federally incarcerated people who are indigenous increased from 12% to 32%.[19] Perrin finds specialized courts for indigenous people hamstrung by the insistence on guilty pleas, by a lack of cultural knowledge, and by a refusal to actually apply indigenous law. He notes that sentencing circles, although much discussed, are extremely rare in practice.[20]
Two insightful chapters of the book are dedicated to crime’s victims. A Canadian criminal matter is a drama with three stars: the Crown, the accused, and the judge. Victims are at best supporting actors, as witnesses and as sources of impact statements. Often, they are not on stage at all, especially in the cases (constituting the majority) in which there is a guilty plea.
The fact that criminal law puts the Crown in the driver’s seat, even though most offences have little or nothing to do with the government or its interests, is a feature of our system so deeply ingrained as to seem almost inevitable. This book helpfully surfaces it for scrutiny. There is a victims’ rights movement which produced the 2015 Canadian Victims Bill of Rights.[21] For Perrin, however, this remains only an “add-on” which sits awkwardly with the basic fiction that crimes are committed against the state, and not against victims.[22] Perrin tells at length the stories of several crime victims whom he interviewed, finding them befuddled, ignored, and disempowered.
Every first year law student learns about certain features of the criminal justice system that are meant to safeguard the interests of the accused. People are presumed to be innocent unless and until guilt is proven beyond a reasonable doubt, and they have the right to remain silent among other procedural rights.[23] However to Perrin these “due process” doctrines are at best a mixed blessing.[24] They emerged in England and were grafted into Canada because the punishments are so severe. They would not be necessary if lengthy incarceration terms were not imposed as routinely as they are in Canada today. Meanwhile, Perrin finds that they disincentivize people to take responsibility for their actions, which in turn undermines the prospects for true reconciliation and healing between victim and offender.
Part II of Indictment presents Perrin’s reform agenda. His starting point is the work of Canadian scholar Ruth Morris on transformative justice.[25] Morris argued, and Perrin agrees, that the only path to collective security is creating a community in which everyone is cared for and included. Morris called for the abolition of prisons as we know them, and Perrin makes this case as well. He advocates for the Norwegian approach, in which prisons are dedicated to preparing people for life after incarceration. The deprivation of liberty is considered punishment enough, and so life on the inside of a Norwegian prison is much less unpleasant than it is in Canada.
Perrin’s version of transformative justice centers the idea that “trauma that is not transformed is transmitted.”[26] One key way to transform it is restorative justice, which seeks to create dialogue between offenders, their victims, and the community. Restorative justice focuses on healing the breach created by crime, and puts victims in a central rather than marginal position. Perrin would like to see restorative justice become the “primary gateway for addressing harm,” and always tried first.[27] If it fails, a “conflict resolution committee” could be convened, hear from all interested parties, and then implement a remedy after a crime. Voluntary treatment and/or acceptance of responsibility would be the preferred options at this stage, with referral to police and prosecution as a fallback.[28]
Perrin calls for the general decriminalization of substances, a case made comprehensively in his previous book Overdose. Chapter 12 argues convincingly that the state must work harder to prevent childhood trauma; the evidence suggests that doing so would prevent a great deal of violent crime in the long run. He would allocate significantly more control over policing and criminal justice to indigenous Nations.
Another big idea in this book, reflecting recent scholarship, is that the criminal justice system is asked to do too much in Canadian society.[29] If preventing and healing trauma is the most important work, then it follows that the caring professions (social work, medicine, education, etc.) should take the lead rather than law-enforcement authorities. Perrin argues compellingly that doing more and better work outside of the system would reduce the amount of offending and thus the demands on the system. For example, he thinks that a large proportion of 911 calls should be responded to not by police, but rather by unarmed, un-uniformed mobile response teams trained in mental health and substance abuse issues.[30]
Indictment is a bold and provocative new perspective on Canada’s criminal justice system. It is an engaging read, thanks to a methodology that foregrounds lengthy interviews with people directly affected by the system. The background research is plentiful, although this is not necessarily evident on a first read of the book. Interestingly, the endnotes are not referenced in any way in the body of the text. Perrin or his editors seem to have decided that even superscript numerals alerting readers to notes would be too distracting, or make the book seem too academic.
Human evil has little place in Benjamin Perrin’s conception of crime and the state’s responses to it. The conventional view is that there is such a thing as evil, and it does play a role in crime. Evil is not born of trauma or mental health problems or substance use. It emerges from greed, lust, wrath, and other human frailties. It seems hard to deny (for example) that Ponzi scams, car thefts, and armed robberies are at least partially attributable to the simple fact that some people want money and don’t care whom they hurt to get it. It seems hard to believe that, if there were no trauma in Canada, there would be no crime.
Acknowledging human evil does not mean denying the existence of trauma, and racism, and other social forces that contribute to crime. Nor does it require believing that any individual is purely or irredeemably evil. As Aleksandr Solzhenitsyn wrote, “the line dividing good and evil cuts through the heart of every human being.”
However, if evil does exist, and if it does contribute to crime, then it seems problematic for the criminal justice system to throw away Lady Justice’s sword, abandoning deterrence and denunciation. Evil acts can be deterred, if people fear punishment more than they crave the fruits of their sins. To some degree, people can make personal choices to respect the bodies and the property of others. If they choose not to do so, denunciation may be morally justified. Even if it isn’t, the widespread popular demand for punishment of transgressors might require some response from a democratic state in order to prevent vigilantism.
Indictment is recommended as a bracing and thought-provoking impeachment of Canada’s criminal justice system. The “more compassionate and evidence-based response to harm in our society,” which is proposed here, is urgently needed.[31] Even if you emerge not entirely convinced by some of the more radical claims in this book, you will see the criminal justice system in a new and clearer light.
[1] Associate Professor, University of Windsor Faculty of Law.
[2] Benjamin Perrin, Indictment: the criminal justice system on trial. Toronto: AEVO UTP, 2023, at page 64.
[3] Perrin, supra note 1 at pages 37.
[4] Perrin, supra note 1 at pages 43, 54.
[5] Perrin, supra note 1 at page 16.
[6] Pippa Norman, “Canada’s criminal justice system put on trial in UBC professor’s new book.” City News, October 8, 2023. https://vancouver.citynews.ca/2023/10/08/ubc-criminal-justice-system-book/
[7] Criminal Code (RSC, 1985, c. C-46), s. 718.
[8] Michael S Moore, “Justifying Retributivism” (1993) 27:1–2 Israel law review 15–49.
[9] “Deterrence is nonsensical when dealing with people in mental health distress because of their underlying conditions.” (Perrin, supra note 1 at page 65).
[10] Perrin, supra note 1 at page 29
[11] Perrin, supra note 1 at page 73 regarding the very poor employment outcomes of ex-offenders in Canada.
[12] Perrin, supra note 1 at page 53.
[13] Perrin, supra note 1 at page 100 and 129.
[14] Perrin, supra note 1 page 54.
[15] Perrin, supra note 1 page 69.
[16] Sherry L Van de Veen, “Some Canadian Problem Solving Court Processes” (2004) 83:1 Canadian Bar Review 91, online: <https://canlii.ca/t/2cjc>.
[17] Perrin, supra note 1 page 39.
[18] R. v. Gladue, [1999] 1 SCR 688, R. v. Ipeelee, [2012] 1 SCR 433.
[19] Perrin, supra note 1 at pages 107 to 108.
[20] 110
[21] Canadian Victims Bill of Rights (S.C. 2015, c. 13, s. 2). Online: https://laws-lois.justice.gc.ca/eng/acts/c-23.7/page-1.html
[22] Perrin, supra note 1 at page 184.
[23] Canadian Charter of Rights and Freedoms, s. 11.
[24] Perrin, supra note 1 at page 153.
[25] Ruth Morris, Stories of Transformative Justice. Toronto: Canadian Scholars Press, 2000.
[26] Perrin, supra note 1 at page 203.
[27] Perrin, supra note 1 at page 280.
[28] Perrin, supra note 1 at page 280 to 284.
[29] Laura Huey, The wicked problems of police reform in Canada, Routledge Series on Practical and Evidence-Based Policing (New York, New York ; Routledge, Taylor & Francis Group, 2023).
[30] Perrin, supra note 1, Chapter 15. Such programs now exist, at least in pilot projects, in several Canadian cities. See for example the Toronto Community Crisis Service: https://www.toronto.ca/community-people/public-safety-alerts/community-safety-programs/toronto-community-crisis-service/.
[31] Perrin, supra note 1 at page 197.
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.
Continue reading “Courting Culture Change for Access to Justice”Earlier this summer, I attended Pride Toronto, an annual festival celebrating the queer community that attracts three million people to its events. Pride Toronto kicks off a wave of pride festivals across Canada throughout the summer.
While I’m not a member of the 2SLGBTQI+ community, it feels very important to show support for those who are, especially given sharply increasing rates of hate crimes motivated by sexual orientation in our country. But like many Canadians, I didn’t always understand this, or know how to be an ally.
Twenty years ago, I was a student at the University of Toronto when a referendum was held on a proposed increase to annual student fees. The proposal would have collected 69 cents from each of the 40,000 undergraduate students at the university, and allocated that money to a campus group. I saw this as wasteful and unnecessary. I wrote an article urging my fellow students to vote no, arguing that each of the university’s clubs and societies should be funded from the another pool of money already drawn from our student fees.
The advocacy group was called LGBTOUT and it represented lesbian, gay, bisexual and transgender students on campus. Those supporting the levy argued that the additional money was needed to support and advocate for U of T students who were frequently targeted by hate and homophobia.
The reality of homophobic hate is what I failed to understand at the time. And so my article asserted that LGBTQ people were not an especially victimized group, that homophobic attacks were rare, and that such attacks could be easily brushed off by their targets.
In retrospect, I can see I was blinkered by the progressive bubble in which I had grown up. I’d attended progressive schools in liberal pockets of midtown Toronto. I had openly gay friends who seemed untouched by homophobia, and I didn’t see the need for the advocacy work that LGBTOUT was doing. But if I’d taken time to ask about their experiences, I would have learned just how close to the surface of Canadian society anti-gay hate lurks.
I slowly learned more over the years, through personal conversations and my research as an academic interested in access to justice. (Especially Michael Riordon’s Out our Way, a book that communicates very clearly the reality of homophobia, drawing on 300 interviews with gay and lesbian Canadians.)
But the ignorance of my 2004 views only hit me after an embarrassing incident many years later. In 2022 I ran for office for the first time as a candidate for the Ontario Liberal Party. On May 13th I was thrust into the spotlight. The Ontario NDP found my 2004 article, alerted the media, and demanded that the leader of our party drop me as a candidate. For a while, it seemed like that’s exactly what would happen.
It didn’t happen, I continued the campaign, and lost anyway (like almost all the other candidates in my party that year.)
In 2004, like now, sexuality and gender identity were frequent topics of discussion in Canadian society. Same-sex marriage was the hot issue at the time. Courts in a few provinces had struck down the old definition of marriage (involving “one man and one woman”) for violating the equality rights provision in the Canadian Charter of Rights and Freedoms. A resolution pledging Parliament to upholding that “traditional” definition had been very narrowly defeated. In my 2004 article I wholeheartedly supported same-sex marriage, which would eventually be legalized nationwide by the Civil Marriage Act.
To me, the legalization of same-sex marriage in Canada remains a breakthrough accomplishment and a reason to be proud of our country — only the third in the world to accomplish this. Marriage equality not only allows people to form their relationships of choice without legal discrimination on the basis of sexuality, it also has a large and significant effect of reducing experiences of homophobia and stigma. Our system of government — our independent courts, our Charter, and our Parliamentary democracy — succeeded in 2005.
And yet there is absolutely no reason to be complacent or to stop fighting for progress. The current rise in hate crime is very alarming, and many powerful politicians continue to traffic in transphobia, overt or veiled. We must all work to make our system succeed again and again if we are to build a better and more just society.
In 2004, I should have better educated myself about the reality of homophobia, and I know that my failure to do so caused harm. That can’t be undone, but I can commit to be a better although still imperfect ally today.
Singapore’s courts were a mess in the late 1980s. There was a five year backlog of cases, and the average commercial matter took between five and six years to resolve. Hearing dates were being set as much as two years in the future.
These timelines may sound familiar, if you’re involved with Canada’s civil courts. The numbers are eerily similar here right now.
And yet what happened in Singapore in the 1990s should encourage Canadians who want to see speedier access to justice in our country. A dramatic improvement was delivered, in only ten years. By the end of the decade, the backlog had been eliminated and the average commercial case was being disposed of in fifteen months. 95% of civil cases, in fact, were resolved within 365 days of their statements of claim.
Continue reading “How Singapore Beat Court Delay”Forthcoming, Canadian Journal of Law and Society
Welfarism is the idea that government should always try to make individuals’ lives go better, for them, than they otherwise would, overall. The goal of this paper is to demonstrate welfarism’s compatibility with, and potential to support, the ambitions of person-centered justice. Welfarism is a normative theory applicable to public policy generally, but one which has distinct consequences in the realm of law and legal systems. They are considered just to the extent that they generate the best possible expected welfare consequences for all of the individuals who are affected by them. Welfarism is radically person-centred because it requires lawmakers to treat each individual affected by their work as a distinct locus of value, including those who have been subordinated or ignored.
Introduction
Person-centred justice offers a fresh and compelling way to think about justice systems. The international and comparative perspective on access to justice offered by the OECD’s Framework and Good Practice Principles for Person-Centred Justice is especially helpful, given the predominantly domestic focus of the scholarship in Canada and some other countries. This short paper seeks to trace connections between person-centred justice and welfarism. Welfarism is a normative theory of public policy – an account of what government should do in the justice sector or in any other sector. The central claim of welfarism is that government should always try to make individuals’ lives go better, for them, than they otherwise would, overall.1
This article explains welfarism’s central claim by unpacking it word by word. It will emerge that, like person-centred justice, welfarism is focused on individuals, on their needs, and on evidence-based ways to make their lives better. The article concludes by suggesting how welfarism might helpfully support and expand the ambitions of person-centered justice.
“Government…”
Welfarism is a theory about public policy— the decisions and actions of governments. This includes national and subnational governments, municipalities, and public sector agencies charged with pursuing the public interest. Law is a form of public policy, at least when it comes from a government entity of some kind. This includes the common law, which is made by government officials (judges) exercising public power and also enforced by state actors. Justice-sector systems and procedures, upon which person-centered justice focuses, are also manifestations of public policy.
Welfarism is a theory about what governments should do, not a theory about what individuals should do.2 In particular, it is not about what individual agents of the government should do. For example, consider a corrections officer working in a prison. Although she works for the government, it doesn’t follow that she should make every workplace decision on the basis of what outcome would, in her view, make individuals’ lives go best overall. She might know with certainty that helping a certain young person escape from prison would do more good than harm overall, because the prisoner was wrongfully convicted and their life will be ruined if they don’t get out. Welfarism does not claim that the guard should help this person escape.
However, the officer’s direct personal experience may well give her insight into how public policy in this area could be improved. Identifying and implementing good public policy is impossible without a vibrant democracy that draws on the knowledge of all citizens, especially those who understand a policy area best, including through lived experience. The OECD’s call for a “people-centred culture in the justice sector” reminds us that insiders have special insight and a special duty to help the system do the right thing.3
“…should…”
Welfarism is a normative theory about what government should do, not a descriptive theory about what government actually does. However, unlike some normative theories, welfarism does not depict an ideal or perfect world. Instead, it seeks to practically guide public policy and make things steadily better.4 In other words, it is a remedial rather than utopian theory. Public policy decisions, about law or anything else, are inevitably made in a complicated context of history, personalities, and existing arrangements. Making decisions that really outperform the alternatives depends crucially on understanding what is actually happening.
Welfarism involves a sharp conceptual distinction between (i) government, and (ii) the individuals who are affected by what government does. Each individual is a distinct locus of value, but the connections between individuals have enormous effects on their welfare, as will be explained below. Thus, welfarism lends itself to functionalism. It directs government to care like a physician for the body politic, to promote welfare-enhancing social phenomena, and to suppress welfare-reducing ones.5
“…always…”
Welfarism proposes a universal normative theory of public policy. Making individuals’ lives better might be the only thing that lawmakers and policymakers should try to do. The theory seeks to guide the largest government decisions (e.g. whether to join the European Union), the smallest ones (e.g. whether to install a stop light at a certain intersection), and the millions of decisions in between. Person-centred justice goals such as improving the quality of justice delivered, and improving its accessibility, are desirable because accomplishing them would make individuals’ lives better than they would otherwise be.6
What about respecting human rights, obeying the constitution, giving people what they deserve, and so forth? These certainly seem to be things that governments should do, but they are non-welfarist principles.7 They propose to guide public policy on the basis of considerations other than the welfare of individual human beings.8
Yet they are things that should be done because they can be expected to make life go better overall. Non-welfarist principles are essential rules of thumb, given the impossibility of calculating all welfare consequences for all affected individuals whenever any government decision must be made.9 The need for the law to respect human rights, for example, has gradually become evident over many centuries. The reason that human rights are entrenched in Canada and many other countries, and beyond the power of elected officials to easily tamper with, is not because they were engraved by any deity upon any tablet. They are entrenched because humans have learned over time that violating these rights leads to bad results in terms of individual welfare.
Identifying the welfare-maximizing course for government “requires the aid of more minds than one age can furnish,” as Edmund Burke wrote.10 Our laws are a record of what seemed wise to officials of previous generations. Although the judgment of historical lawmakers was clouded by bias and self-interest, so too is our own and this is no reason to disdain their bequests. An entrenched bill of rights (like the Canadian Charter of Rights and Freedoms) enshrines principles that, to previous generations, seemed especially important and worthy of respect.
However, because they are rules of thumb, laws and other non-welfarist principles must be subject to exceptions and amendment based on welfare predictions. For example, a person refusing vaccination while continuing to visit indoor public spaces was arguably exercising an inviolable human right in 2019. By late 2020, amidst the Covid-19 pandemic, governments seem to have had good reason to amend the scope of this right in order to protect welfare. The constitutional bills of rights in Canada and many other Western nations give elected governments opportunities to justify prima facie constitutional breaches, or even exempt laws from constitutional scrutiny.11 Human rights are typically not inviolable sacred commandments, but rather topics of dialogue between lawmakers in the elected and judicial branches of government.12
“…try…”
It may seem ambitious – perhaps even arrogant – to boil down all of the things that government should do into a single principle. However intellectual humility – humbleness about how much can be known –counterbalances welfarism’s normative audacity. Government can only try to find the policies that will make individuals’ lives go best. It never has access to full knowledge regarding the welfare consequences of any policy option.
Risk and Uncertainty
At best, the options open to lawmakers are subject to risk. For example, environmental regulators must decide whether to forbid or allow proposed private sector activities, and what conditions to impose upon them. They must do so without scientific certainty about the environmental and economic consequences of the proposed projects. For example, an Ontario regulator had to decide in 2012 whether to permit the construction of a quarry on the Niagara Escarpment near Collingwood.13 Permitting the quarry was likely to generate welfare gains from new jobs and access to resources, but it also imposed risk of welfare losses from water problems and other environmental risk.
In cases like this, expected welfare benefits and losses from the project can often be identified before the decision is made.14 Expected welfare effects are calculated by factoring in the chance that they won’t materialize. For example, the employment-related welfare benefits of permitting a mine should be discounted for the possibility of the mine becoming uneconomical and closing within a few years. Requiring rockfall fencing in a quarry in case of an earthquake-induced avalanche might turn out to be a job-killing waste of money if no earthquake occurs during the life of the mine. That doesn’t mean the regulator was wrong to require the fencing as a condition of the license. The expected welfare benefit of preventing a death or serious injury might more than justify the expense, even if there was only a small chance of the fence ever being needed.
Public policy questions are often much more complex than this scenario. Governments confront not only risk but also deeper uncertainty.15 No government can precisely quantify how a project will affect complex economies and ecosystems. Not only can they not accurately quantify the likelihood of the various outcomes that can be imagined, but they also can’t even list all of the possible ways that a certain decision could affect individual welfare. A project like an aggregate mine might lead to the arrival of an invasive species, previously unknown in the jurisdiction, that devastates agriculture. On the other hand, it might uncover unexpected minerals, which create local economic benefits far beyond anything anticipated. One welfarist tool for dealing with uncertainty, enshrined in Canadian law, is the precautionary principle. This states that “where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures” to mitigate or prevent the threats.16
Intellectual Humility
Humility makes a person respectful and cautious; this virtue should have the same effect on our thinking about public policy. Some decisions can be made by quantifying and calculating welfare impacts on individuals. One example was the dramatic expansion of mental health funding in the UK in the 2010s, based on the proven and powerful capacity of talk therapy to relieve human suffering.17 But in other cases, government must defer to less scientifically explicit ways of knowing what policies are most likely to make lives go best.18 These include the rules of thumb mentioned above: respecting human rights, democracy, constitutions, and traditions. Those deep natural springs sometimes give forth progress that technocratic policy-making would never bring surface. For example, Canada’s constitutional rule of thumb against discriminatory laws, enshrined in the Canadian Charter of Rights and Freedoms and developed in a series of court decisions, led to the legalization of same sex marriage by 2005.19
Litigation is inherently adversarial, and can serve as a check on government misdeeds or negligence. However litigation is also a process by which an intellectually humble state can learn about and respond to welfare needs in its population. In addition to remedies granted to the parties by the courts hearing their cases, litigation is a way to call the attention of the elected branches of government to problems.20 In Canadian family law, for example, explicit statutory formulae for matrimonial property division, for child support, and for spousal support were all enacted because spates of family law cases (none of which involved state parties) demonstrated that the common law was not providing sufficient clarity to ground out-of-court resolutions.21
A lawsuit with an individual plaintiff is inherently person-centered, because it involves a person whose story will be heard and must be responded to, by the defendant and potentially by the court.22 As David Luban wrote, “litigants serve as nerve endings registering the aches and pains of the body politic, which the court attempts to treat by refining the law.”23 Institutions such as judicial independence support this process, with better public policy as the payoff.24
The intellectual humility within welfarism includes a willingness to respect arrangements that are already working, even if we don’t understand exactly how.25 In some cases, making individuals more free to pursue their own welfare is the course that can reasonably be expected to make lives go best.26 Government should not lightly assume that it knows better than individuals do what will make their lives go best for them. People tend to assiduously pursue their own welfare and the welfare of their loved ones. Sometimes good public policy is a matter of getting government out of their way. On the other hand, liberty is not an end in of itself for a welfarist; only welfare is. Thus, laws requiring seat belt usage constituted welfarist progress (they prevented hundreds of thousands of injuries and premature deaths), even though declining to buckle up mostly harms only the individual non-buckler themself.
“…to make…”
Welfarism is a consequentialist theory. Consequentialism is the idea that whether or not a thing should be done depends on what can reasonably be expected to happen, if that thing is done. This approach “start[s] with a conception of what is good and define[s] right choice in terms of that.”27 Under welfarism, outcomes are good to the extent that individuals have welfare in those outcomes. Government choices are right to the extent that they can rationally be expected to bring such outcomes about. If consequences were off the table – because the world were to end tomorrow or because God were to control everything that happens – then there would be no such thing as good or bad public policy, or good or bad law.
Because public policy does have consequences, welfarism holds that we are morally bound to reform policy in order to bring about better consequences. Within the complex systems in which we find ourselves, predicting consequences of public policy is often challenging. Welfarism therefore demands evidence-based policy, thoroughly grounded in the natural and social sciences, to understand both needs and the likely consequences of alternative responses.28 In this, welfarism it is highly compatible with person-centred justice’s focus on evidence and empirical data.29
Canada’s court system does not excel in tracking and publishing data that would allow it to be improved.30 Some adjudicative tribunals do better, systematically gathering and disclosing information such as average time-to-disposition and the number of cases that are resolved at the different procedural stages.31 Surveys assessing tribunal users’ satisfaction with the procedure, a measure endorsed by the People-Centred Justice Framework,32 are also very helpful. Again, in Canada it is not courts but rather tribunals such as the BC Civil Resolution Tribunal and the federal Social Security Tribunal that have taken the lead in providing such data.33
For some policy questions, there is no peer-reviewed scholarship or rigorous data available to inform the necessary decisions. For example, today there is extensive evidence that legalizing same-sex marriage delivers major reductions in adolescent suffering and suicide, by sending a message of inclusion to young people.34 However this evidence emerged only in the period after 2010, because of a “natural experiment” in the United States where some but not all states legalized. This type of evidence did not exist to inform Canada’s debate on same-sex marriage in 2003 and 2004. Welfarism and person-centred justice call for evidence-based policy, and yet in some cases the best available evidence is not written down or formalized. Instead it is tacit, knowable informally by people who are close to the problem. We sometimes “know more than we can tell,” in the words of philosopher and scientist Michael Polanyi.35 In the case of marriage legalization, the litigation process put before decision-makers the direct personal evidence of same-sex couples regarding the old law’s adverse effects upon them. The OECD’s key text on person-centered justice refers to evidence-based policy dozens of times;36 welfarism concurs but suggests that in some cases a more liberal approach to evidence might be required.
“…individuals’…”
It is only the welfare of individuals that is inherently valuable in public policy. Jeremy Bentham, the father of welfarism, wrote 240 years ago that
the community is a fictitious body, composed of the individual persons who are considered as constituting as it were its members. The interest of the community then is, what?—the sum of the interests of the several members who compose it.37
Sometimes people will say that a certain policy or legal reform would be in the “national interest,” or the “public interest.” To a welfarist, such claims only make sense as a shorthand way to claim that the policy would favour the welfare of individuals who are (or will be) part of that nation or “public.” Normative individualism is a basic commitment of welfarism.38
However, Bentham went too far in describing communities as “fictitious.” The welfare of any individual depends crucially on the structures and systems within which they live. No one is an island. Good policy must pay attention to the connections between us, and to the intangibles that sustain us. For example, the criminal law regarding parental corporal punishment of children must take into account not only the welfare effects of corporal punishment itself upon children, but also the welfare losses associated with justice system intervention into families, and the potential for that intervention to be biased in terms of race, class, or other factors.39 The welfare benefit of legalizing same sex marriage includes the good it did for people who choose to enter such unions. But a larger welfare gain probably accrued to those who had no interest in marriage, but heard the policy’s message of inclusion and experienced the resulting de-stigmatization of sexual difference.40
Welfarism is radical in its insistence that every affected individual matters, and in its demand that government make lives better if it can.41 Justice systems have an unfortunate tendency to take seriously only the interests of individuals who can make themselves heard within the systems’ formal procedures. Welfarism calls attention to all those whose interests are affected. It is therefore a way to interrogate the system’s selectiveness in terms of who is heard. The OECD’s Framework notes an evolution in person-centered justice from “client-centered” approaches focused on those who actually seek assistance, toward an acknowledgement that most people with legal needs do not present themselves to any formal process of service-provider.42 They may not come forward because they don’t recognize the legal dimensions of their problems, 43 or because they perceive the options for redress to be disproportionately expensive, stressful, or time-consuming.44
Welfarism aligns with movements to establish and vindicate the welfare-promoting legal rights of those who are politically invisible, such as migrant workers and unhoused people.45 The high welfare cost of incarceration on the imprisoned must be weighed in any analysis of sentencing or bail law, along with whatever welfare benefits are obtained through incarceration. Retributivism – in the sense of treating the suffering of offenders as an inherently worthy goal of policy– is incompatible with welfarism’s commitment to making lives better, not worse.
At the same time, deterrence and incapacitation in the criminal justice system have legitimate welfarist purposes. Victims remain an afterthought in this system,46 despite the 2015 passage of the Canadian Victims’ Bill of Rights.47 Sometimes the rights of victims (or potential future victims) must be balanced against the rights of accused people, for example in bail law. However, smart and evidence-based reforms that “bend the curve” and leave everyone better off are always preferable. Restorative justice, for example, can in appropriate cases leave victims much more satisfied than they would otherwise be while reducing recidivism and allowing the offender to repair the damage they caused in society.48
More than some other areas of public policy, justice policy has to interrogate and confront power within our economy and society. The OECD’s Framework calls for reflection on the justice system’s potential to privilege powerful repeat players.49 Access to justice problems are not necessarily accidents. If government allows tribunals in which benefit claimants assert their rights against government Ministries and insurance companies to become so backlogged that claims are abandoned, it is important to understand that this state of affairs may favour the bottom line for the government or its friends.50
“…lives go better…”
Welfare can be defined as “what we have when our lives are going well for us.”51 But what makes life go well? The question is an ancient, apparently bottomless well of debate. Three major schools of thought have emerged:
If welfarism required a resolution to the debate between these schools of thought, it would be useless as a practical aide to government. No government knows, and no government should act as if it knows, what makes life good in the deep philosophical sense. Fortunately – and perhaps counterintuitively – such knowledge is not actually necessary. Welfarism does not need to make judgments about the essence of welfare. It only needs acceptable ways to estimate the welfare of different individuals, as the next section will explain.
“…for them…”
Subjectivism
How, then, can one estimate the welfare of the individuals who would be affected by a policy decision? There might be hundreds of millions of them, and many of them might not be alive yet.57 Lifetime income would be one easy proxy for a person’s welfare. Public policy could assume that the more money a person has, the more welfare they have. Indeed, growth or shrinkage in a country’s gross domestic product has sometimes been taken as a grade on the government’s performance. When law reform reduces incomes, that constitutes a welfare cost that must be compared to the welfare benefits of the reform. Law and economics has developed sophisticated tools to predict the effects of legal regulations on incomes and access to resources.58
However, economic growth is definitely not the same thing as welfare growth. This is especially so if economic growth imposes irreversible environmental costs, and if the new wealth flows to those who are already rich.59 For this reason, the United Nations Human Development Index adds two other simple statistical measures to income — life expectancy and years of education — and ranks nations’ performance on this basis.60 Such straightforward statistical measures serve a purpose. And yet they also seem to miss a great deal about what makes life good. Knowing how long a person will live, how much money they will have, and how long they will go to school doesn’t seem to allow one to say, even approximately, how well their life will go for them.
The author’s view is that welfarism is on thin ice if it measures individual welfare using these “objective” lists of attainments or capabilities. Government has no special insight into what actually makes life good. It is presumptuous to operate as if a person will have welfare just because their life has certain attributes that politicians or philosophers consider to be important.
Instead, estimates of individuals’ welfare that drive policy decisions should be based on the values of the individuals themselves. You don’t have welfare because your life conforms to what anyone else thinks your life should be. You have welfare to the extent that your life goes well for you.
Thus, the approach to estimating welfare effects needs to be subjective. Something should count as a welfare change in someone’s life only if – and to the extent that – that person would see it as such.61 If a person doesn’t care about something, and won’t consider their life to be better if they get it, then the government has no business assuming that thing will improve that person’s welfare.
One subjective technique for evaluating welfare is life-evaluation.62 People are asked how satisfied they are with their lives overall, on a scale of 0-10. The higher the number a person gives, the more welfare they are assumed to have.63 Another subjective technique is preference-fulfilment. Individuals have certain preferences regarding their own lives. The more that one’s preferences about one’s own life are met, the better one’s life is taken to be. The People-Centred Justice Framework lauds the trajectory in health policy from a focus on disease toward a holistic focus on people’s needs, and calls for an analogous development of justice policy.64 Holistic and subjective quantitative measures of individual welfare, such as life-evaluation and preference-fulfilment, are a step in this direction.
Everybody to Count
Welfarism holds that government exists only for the benefit of the individuals affected by it. The interests of privileged people, and government insiders, should receive no premium weighting. This is one straightforward manifestation of the rule of law principle which is central to many legal traditions.65 Scrutiny of the public sector often reveals arrangements that put insiders or privileged people first, and the justice system is no exception . As the People-Centred Justice Framework points out, “many justice pathways have been designed from a provider perspective,” without sufficient understanding of the needs of the people for whose benefit they purportedly exist.66 This may reflect self-dealing by insiders, but it may also reflect a simple slowness to adapt public sector institutions and programs to changing needs and realities.
Canada’s civil justice system in the mid-20th century, for example, generally assumed that all parties would be represented by lawyers. It was mostly only corporations and affluent people who had reason to use the civil system at the time, because the substantive law did not endow anyone else with rights that were worth asserting in court. That changed with the “Rights Revolution” beginning around 1960. Legislatures created extensive new rights for individuals, including employees, consumers, and people leaving intimate relationships. However, for many those whom legislators intended to assist, the new rights remained mere words on the pages of lawbooks, unless they could be successfully asserted against deep-pocketed and sometimes intransigent adversaries. The willingness of Canadian governments to establish new substantive legal rights was not matched by a willingness to pay for lawyers or others to help people assert those rights in court, especially after civil legal aid was pared back in the 1990s.67 The result was a wave of self-represented litigants struggling in a court system that was not designed for them.68
The Framework notes a tendency for justice systems to evolve slowly over centuries, “often away from a people-centred focus.”69 This might be because only insiders (especially lawyers and judges) take an interest in the system or have the opportunity to shape it. Without denying the noble policy accomplishments of the common law, and in particular the evolution of procedural justice, justice system reform driven by evidence and non-lawyerly ways of knowing seems to be crucial at this juncture. Design thinking – drawing on insights from disciplines including psychology and social work – is essential if we are to create systems that truly function for the real people who need to use them.70 As Lorne Sossin observed, the “best way to design a tribunal may draw on expertise from retail and hospitality sectors as much as courthouses and government agencies.”71 Canada’s tribunals are a promising site for major access to justice breakthroughs because, compared to courts, they can more readily be designed and held accountable for their performance.72
Everybody counts under welfarism, and that includes people who are affected indirectly by the justice system’s operations. For example, providing real access to justice for victims of domestic violence is also often very important for the welfare of their minor children. Reasonably prompt access to civil justice has also been identified as a crucial support for prosperity and business competitiveness.73 The persons upon whom justice must be centred include those who are not parties or clients, but nevertheless have their interests at stake.
“…than they otherwise would…”
Welfare is a matter of degree; it is what one has to the extent that one’s life goes well for them. Comparisons are at the heart of welfarism. Policy options must be compared to alternatives, and individual lives must be compared to other lives, all in terms of welfare. The theory holds that the welfare levels of individuals’ lives can be compared in several different ways:
Because all of these welfare comparisons are possible, the gains and losses from a proposed policy can be analyzed together, allowing a rational and evidence-based conclusion about its advisability.
Applying numbers to welfare effects is often very helpful. Some welfarist techniques seek to quantify all of the welfare effects of a policy option in terms of dollars or other money units.76 Welfare can also be quantified without any reference to money. For example, the effect of depriving someone of a career in the law through the imposition of an unfunded and mandatory third year can be compared to the effect of depriving someone of their law-professor career by eliminating the third year, using techniques such as life-evaluation and preference-fulfilment.
However, full quantification is not always possible, and welfarism does not necessarily require it. Even if the law society cannot fully quantify the welfare effects of the policy options confronting it, it might be able to at least estimate the number of people in each of the affected groups. At very least, welfarism requires the decision-makers to think and consult as broadly as possible to understand who will be affected and how. This may lead to the identification of practical alternatives that capture all or most of the welfare benefits of the original proposal, with fewer welfare costs.
“…overall.”
This word has a couple of key meanings within the theory. First, welfare is an attribute of someone’s whole life, and not of moments or episodes within that life. If a government policy would make the next month of my life better than it would otherwise be, but would also impose burdens on me that will last for years to come, then that policy might reduce my welfare. Thus, each individual life must be considered overall.
Second, it is the overall welfare effects of a policy option that are relevant, taking into account all of those who gain as well as all of those who lose from it. In some cases, a policy might constitute a pareto improvement, making some people better off and no-one worse off. The legalization of same-sex marriage seems to be an example. While some people disagree with same-sex marriage, there is no evidence that anyone’s life is worse for them because of this policy change. It is only the fulfilment of preferences about an individual’s own life that affects their welfare, according to the preferentist approach described above.
However, most public policies create real welfare losses and well as gains. They may be Kaldor-Hicks improvements, meaning that they generate welfare gains for some individuals more than large enough to compensate those who would lose from the change.77 For example, Australia was in the 1990s burdened with a dairy industry supply management scheme that drove up food prices and created numerous international trade problems. The government abolished all price controls in 2000, but earmarked $2 billion to compensate producers who would otherwise “lose” from the reform. This was entirely funded by a 10-year surcharge on milk sales equivalent to 11 cents per litre, paid for by the chief beneficiaries of the reform: consumers of milk products. Despite the surcharge, the price of milk fell by at least 18% within six years,78 and fell further once the 10 year transition period ended. In light of the compensation, the reform was popular and profitable in the long run for producers as well as consumers.79
Inevitable Trade-offs
Unfortunately, most policy decisions impose welfare losses on certain individuals that cannot or will not be compensated. Policy-makers must usually slice or re-slice the “pie” in addition to trying to grow it. Welfarism includes an extensive scholarship focused on distributional questions, which are not always visible at first glance. Seatbelt laws, for example, save lives. However, in light of the reality of systemic racism, seatbelt laws may also mean more police traffic stops for “driving while black,” generating many different types of welfare loss.80
In civil justice policy, some reforms may create “more access to less justice.”81 To take a straightforward example, consider simplified procedure used for cases with monetary value below $200,000 under the Ontario Rules of Civil Procedure.82 Parties are allowed only three hours to examine each other orally before trial, instead of seven hours under normal procedure. This makes litigation quicker and more affordable, but may also lead to miscarriages of justice in cases where the permitted time is insufficient to bring the truth to light.83 For policy decisions of this nature, welfarism calls for reformers to maximize the expected welfare of all those affected by procedural reforms, taking into account both the welfare benefits of improved access, and the welfare costs of reduced justice.84
Utilitarianism and Beyond
How are welfare gains to a policy’s winners to be totted up against losses to its losers? The simplest approach, known as utilitarianism, was proposed by Jeremy Bentham. Under utilitarianism the goodness of an outcome depends on the sum of the welfare of individuals in that outcome.85 Suppose the expected welfare gains from eliminating the mandatory third year of law school (to aspiring lawyers, and to clients who would slightly pay lower fees) are equal to x. Suppose the expected welfare losses (to clients who will suffer from reductions in lawyer competence, to aspiring law professors, etc) are equal to y. The policy should be adopted if and only if x is greater than y, according to a utilitarian analysis.
Cost-benefit analysis (CBA) is the standard technique for applying utilitarian welfarist analysis to public policy initiatives. It is used in Canadian law for analysis of regulations,86 although it has been observed that CBA tends to conflate income with welfare.87 The related technique of cost-effectiveness analysis (CEA) is deployed for decisions about public funding of drugs and medical technologies.88 CBA and CEA, along with the newer and less widely deployed social welfare function technique,89 are established ways to operationalize welfarism for public policy decision-making.
Utilitarianism is not the only option, when it comes to determining the overall welfare effects of policies. Utilitarianism takes no account of the idea – which is entirely compatible with welfarism—that government should pay special attention to those with relatively low welfare.90 Perhaps the individuals who would gain welfare from the elimination of 3L – students of modest means for whom this change would unlock a legal career – on average have less welfare than the law professors and clients who would lose from it. Prioritarianism attaches more weight to the welfare of these relatively badly-off individuals within the alternative outcomes, and less weight to the welfare of better-off individuals.91
Under prioritarianism, a policy that makes the distribution of welfare between individuals more equal may be preferred over one that produces a higher sum of welfare. Prioritarianism and utilitarianism are just two of many possible “outcome-ranking rules” for determining the overall attractiveness of a policy option based on its expected welfare consequences. They are both compatible with the overall directive of welfarism: that government should always try to make individuals’ lives go better, for them, than they otherwise would overall.
Conclusion : Person-Centred Justice and Welfarism
Person-centred justice is an inspiring call to rethink our approach to law, to legal systems, and to the work we need to do to make them better. This article has proposed that welfarism — an idea with ancient roots that has recently been rejuvenated by scholars from a variety of disciplines – is a helpful companion for person-centred justice. In particular, it may help equip person-centred justice to tackle the distributional and philosophical questions inevitably associated with law. Another dividend could be a better understanding of how and why access to justice makes people’s lives better than they would otherwise be. Finally, welfarist person-centered justice clearly situates access to justice initiatives as public policy initiatives, and provides a frame to analyze them normatively as such. Person-centred justice is a new idea; welfarism is a much older one; an alliance between them may do great things for access to justice in Canada and abroad.
Forthcoming, Canadian Bar Review (Spring 2025)
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
(2024) Canadian Journal of Administrative Law and Practice, Vol 37, Page 135.
Tribunals constitute a vitally important part of Canada’s justice system, but their place in the Canadian state is fragile and their essential function is misunderstood. This article explains the need for pro-functional tribunal law, which would position tribunals to consistently deliver on their potential. Differentiating tribunals dedicated to resolving legal disputes from non-tribunal agencies that do other work is the key. Differentiation would advance goals related to specialization, the separation of powers, and democracy in Canada. It would allow tribunals to escape the taint of partiality to government. It would also set the stage for a professionalization and depoliticization of tribunal appointment practices, securing tribunals and their users from the type of dysfunction that has recently plagued Ontario’s tribunals. The final Part of the paper argues that the Canada’s legislatures, rather than its appellate courts, are the most promising venue for the adoption of pro-functional tribunal law.
Full text: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4780291
Slaw.ca Column, March 26th 2024
A Bill recently introduced to Ontario’s Legislature can tangibly relieve the crisis of access to justice and politicization in the province’s tribunals, and blaze a path to better appointments for adjudicators and judges across the country. The Fewer Backlogs and Less Partisan Tribunals Act was introduced by Liberal MPP Ted Hsu, and will be debated in the Ontario Legislature on April 18th.
Ontario’s high-volume tribunals — especially the Landlord & Tenant Board, the Human Rights Tribunal of Ontario, and the Automobile Accident Benefits Service — have been afflicted by dire access to justice problems in recent years. The root cause of the notorious dysfunction was the Ford government’s decision to refuse reappointment to almost everyone initially hired before the 2018 change of government. This deprived tribunals of their most experienced leaders and members. Politicization has also undermined tribunals’ internal culture and made it much more difficult to attract high-quality replacements for those who were dismissed. This was compounded by the provincial government’s rash decisions to force all hearings online and adopt a flawed and untested case management system.
Ted Hsu’s Fewer Backlogs and Less Partisan Tribunals Act seeks to place tribunals permanently on a sounder footing, by insulating them from politicization and purges. It would establish an Adjudicative Tribunal Justice Council, the leaders of which would include retired judges, experienced administrative lawyers, and representatives of the public. Most members of the Council would be appointed not by elected officials but rather by nonprofit groups that understand and care about administrative justice.[1]
The Adjudicative Tribunal Justice Council would, in turn, take the lead in ensuring that Ontario’s tribunals are efficient, speedy, and professional. The Bill would mandate the Council to monitor tribunal operations, and to identify problems and solutions. Perhaps most importantly, the Council would also vet recruitment plans for tribunal members and Chairs. Here, the priority would be on finding highly meritorious, diverse, and professional people who can do the challenging but essential work of resolving disputes and adjudicating.
Cabinet officials would still make the final appointments, but they would have to act quickly on the Council’s recommendations and explicitly justify any refusal to follow them. The Bill also guarantees that, once initially appointed, hardworking and high-performing tribunal members would no longer be subject to politically motivated termination. That fate has befallen many in Ontario in the years since 2018.
For Hsu, who represents Kingston and the Islands, hearing from people again and again who have suffered from tribunal delays i motivated him to introduce the Bill. Hsu’s Fewer Backlogs and Less Partisan Tribunals Act draws on a Model Act drafted by Ron Ellis, who was the leading champion of administrative tribunal justice in Canada before his passing on December 3rd, 2023.
Problematic executive-branch appointments of judges have been in the news at both the provincial and federal levels:
The Fewer Backlogs and Less Partisan Tribunals Act may point the way to an appointment process which is professional rather than political, and which is likely to be speedy and efficient as well. While this Bill applies to tribunals rather than courts, tribunals are an integral part of the justice system. If passed, the FBLPTA will ensure that the entities that hear the most common civil disputes (tribunals) will benefit from an apolitical, efficient process for appointments. Section 14(4) of the Bill requires the executive branch to appoint Members recommended by the Council within 60 days, or give reasons for declining to do so.
This Bill won’t fix Ontario’s tribunals mess right away, but it will create a secure foundation for tribunal justice in the medium term. In the long term, it might be the beginning of a less political, more reliable way to appoint adjudicators in tribunals and courts, across the country.
________
[1] These are the Society of Ontario Adjudicators and Regulators, the Association of Community Legal Clinics of Ontario, the Administrative Law Section of the Ontario Bar Association, and the Federation of Ontario Law Associations.
Imagine suing the federal government without a lawyer, making your case before a neutral adjudicator, and then getting an enforceable decision, on the merits, less than four months later. This may sound like a far-fetched fantasy if you’re familiar with civil litigation in Canada. In our courts, civil lawsuits routinely take 4-5 years to get to adjudication. Legal fees average about $40k per party to get through a 5-day trial. Self-representation is a frustrating and overwhelming ordeal for most people who try it.
And yet the four month path to adjudication is not just an idle fantasy to ponder while you wait 18 months to get your civil motion heard. It describes the Social Security Tribunal of Canada (SST), a federal tribunal established to hear appeals of government decisions regarding benefits. SST litigants can be represented by lawyers, but 75% of them proceed self-represented, sometimes with help from a friend or family member (which is also allowed). The SST procedure and rules were consciously designed to be accessible. “Navigators” employed by the SST help litigants understand the process and prepare for their hearings for the hearing, at no charge. 95% of individuals who use the SST procedure report that they are satisfied by it. When SST decisions are appealed to higher courts, they are seldom overturned.
The SST is recognized as one of the best-functioning tribunals in Canada. (Ontario’s high-volume provincial tribunals, by contrast, are struggling badly.). But there are many tribunals in Canada that deliver a level of access to justice which courts cannot match. Tribunals, in the words of Madam Justice Rosalie Abella, are “designed to be less cumbersome, less expensive, less formal and less delayed,” which lets them “resolve disputes in their area of specialization more expeditiously and more accessibly, but no less effectively or credibly” than courts would. The best tribunals provide access (quick, cheap, and low-stress procedure). They do so without sacrificing justice (substantively correct rulings, adherence to procedural justice, and a public and transparent process).
What explains the success of best-in-class tribunals in creating access to justice? Obviously, it has something to do with the nature of the cases that they deal with. These tend to be factually and legally simpler than civil court matters are. And yet tribunals also have three key features that distinguish them from courts and allow them to excel in A2J terms:
None of this is meant as a criticism of Canada’s courts. They have different strengths, including Canada’s most brilliant legal minds on the Bench as well as constitutional independence from government. Courts are equipped to do things that tribunals cannot. However tribunals have enormous potential to create access to justice for Canadians, and this potential has not yet been fully tapped.
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.
What might a client-centric systemic racism agenda look like? First, it would have to focus both on actual clients who are racialized, and on the much larger number of individuals who would like to receive (and need to receive) legal services but never get the chance. Second, such an agenda would consider the quality and accessibility of legal services for individuals, but also for corporate clients exposed to systemic racism. This includes First Nations, equity-seeking nonprofits, and businesses owned and operated by racialized people.
Here are a few issues that might come into better focus with client-centric lens on systemic racism:
Maintaining a client-centric stance is a recurring challenge for our law societies, and for the profession more broadly. The law mandates us to act in the public interest. This phrase is emphasized in the legislation and case law because it’s often easier to talk among ourselves about lawyers’ interests. After all, our regulators and professional bodies are led almost exclusively by lawyers who are accountable only to other lawyers. This is a consequence of self-regulation of the legal profession, a principle which remains essentially iron-clad in Canada.
Law societies have led a conversation about systemic racism that was scarcely happening 15 years ago, and that’s a very good thing. It may be time to expand that conversation in a new direction. It is time to ask how we as a profession can better meet the needs of racialized and indigenous clients.
Review of Michael Trebilcock, Paradoxes of Professional Regulation: In Search of Regulatory Principles. Canadian Business Law Journal, Vol. 67, page 247.
Draft Online: https://ssrn.com/abstract=4640225
