Category: Access to Justice

Let’s Look Before We Leap: Why Ontario’s Civil Rules Review Needs a Research Phase

Noel Semple

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.

Courting Culture Change for Access to Justice

Noel Semple

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” →

How Singapore Beat Court Delay

Noel Semple

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” →

Tribunals for Access to Justice in Canada

Noel Semple

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

Systemic Racism, Clients, and the Law Societies

Noel Semple

Slaw.ca, December 2023

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

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

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

Adjudicative Tribunals: In Need of Friends in High Places

Noel Semple

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

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

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

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

Better Access to Better Justice: The Potential of Procedural Reform

Noel Semple

Canadian Bar Review, Vol 100, No. 2

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

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

Civil Procedure and Practice in Ontario, Vol. 2

Noel Semple

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

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

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

Noel Semple

Slaw.ca Civil Procedure Column, June 9, 2022

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

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

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

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

Justice at Tribunals: At the Government’s Whim

Noel Semple

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

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

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

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

Justice in Your Neighbourhood?

Noel Semple

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

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

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

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

Continue reading “Justice in Your Neighbourhood?” →

What’s Your Procedural Pet Peeve?

Noel Semple

Slaw.ca Civil Procedure Column, August 13, 2021

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

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

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

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

The British Invasion: Legal Services Regulation Edition

Noel Semple

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

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

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

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