Courting Culture Change for Access to Justice

Forthcoming, Slaw.ca, October 2024

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

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

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

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

Decision Points in Practice

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

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

Why Culture Matters

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

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

The Barrel of Apples

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

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

Culture Change Led by the Bench

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

Legislating Culture Change

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

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

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

Can we shift culture by changing rules?  

What do you think?

Tribunals for Access to Justice in Canada

Forthcoming, Canadian Bar Review

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

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

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

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

Justice Denied: Constitutional Remedies for Systemic Delay

Slaw.ca Access to Justice Column, December 14 2022

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

Justice Delayed

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

Continue reading “Justice Denied: Constitutional Remedies for Systemic Delay”

Civil Procedure and Practice in Ontario, Vol. 2

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

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

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

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

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

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

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

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

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

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

Slaw.ca Civil Procedure Column, June 9, 2022

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

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

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

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

Justice at Tribunals: At the Government’s Whim

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

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

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

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

Justice in Your Neighbourhood?

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

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

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

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

Continue reading “Justice in Your Neighbourhood?”

Standards, Rules, and Law’s Quest for Certainty

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

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

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

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

Continue reading “Standards, Rules, and Law’s Quest for Certainty”

The Accountability Gap and The Struggles of Our Civil Justice System

Slaw.ca Legal Ethics Column, April 22, 2021

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

Conflict management systems are increasingly common within large corporations and other organizations. Workplace interpersonal disputes and bad behaviour are inevitable, but also manageable. Interests can be reconciled, rights can be upheld, and peace can be restored. A conflict management system is built to do exactly that.

Continue reading “The Accountability Gap and The Struggles of Our Civil Justice System”

Justice Delayed and Denied in Ontario’s Tribunals

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

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

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

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

Continue reading “Justice Delayed and Denied in Ontario’s Tribunals”

Tort Litigation and Greenhouse Gas Emissions: Changing the Climate of Opinion

Slaw.ca Legal Ethics Column, June 6, 2019.

Found online at: http://www.slaw.ca/2019/06/06/tort-litigation-and-greenhouse-gas-emissions-changing-the-climate-of-opinion/

Climate change is probably the single greatest threat to the security and prosperity of Canadians, as well as the rest of the human race. The most effective, least painful way to mitigate climate change is to impose a price on greenhouse gases worldwide, either through carbon taxes or tradable emission permits. However, carbon pricing is as politically difficult as it is economically efficient. In most countries, voters and political leaders have so far refused to support prices high enough to keep the risk of catastrophic climate change within an acceptable band. In Canada, there is also real risk that the federal carbon pricing backstop will be derailed on constitutional grounds. Continue reading “Tort Litigation and Greenhouse Gas Emissions: Changing the Climate of Opinion”

Depending on the Kindness of Strangers: Access to Civil Justice in Canada

(2013) Legal Ethics, Vol. 16, No. 2, pp. 373-376.

‘Abysmal’ was the word used to describe the accessibility of Canadian civil justice in a recent major report. Access to justice is simultaneously a social problem, a professional obligation for the legal profession, and a market opportunity for law firms. Are there any signs of significant progress on any of these fronts? This short Correspondent’s report will review recent Canadian efforts to connect people of modest means with the expert legal services they urgently need.

Full text: http://ssrn.com/abstract=2385989