Buy­ing jus­tice

The Compass - - EDITORIAL - Rus­sell Wanger­sky Rus­sell Wanger­sky is TC Me­dia’s At­lantic re­gional colum­nist. He can be reached at rus­sell.wanger­sky@tc.tc Twit­ter: @Wanger­sky.

Last Fe­bru­ary, I wrote about the Sydney, N.S. air­port and a plumber.

The plumber’s union was su­ing the air­port. Af­ter hav­ing knee re­place­ment surgery, the plumber was off work for nine months and ar­gued that, dur­ing his sick leave, he should be ac­cru­ing va­ca­tion days. The air­port had a dif­fer­ent view, say­ing that by that type of logic, the plumber could ac­tu­ally ac­crue sick days while on sick leave, some­thing the air­port felt was plainly ridicu­lous.

An ar­bi­tra­tor agreed with the air­port. The ar­gu­ment was es­sen­tially moot, how­ever, be­cause the plumber had gone on long-term dis­abil­ity any­way, and did not re­turn to work.

But the union fought on over the prin­ci­ple. (And there is a place for that —â a union can cer­tainly take a stand no in­di­vid­ual em­ployee can.) Last Feb- ru­ary, the case was to be sent back to ar­bi­tra­tion af­ter ju­di­cial re­view, mean­ing the dis­pute, which started in Oc­to­ber 2011, was es­sen­tially back to square one.

But here we go again. Now, there’s yet an­other day in court. This time, the case was heard in the Nova Sco­tia Court of Ap­peal, tak­ing the time of three ap­peal judges and three lawyers, and with a de­ci­sion com­ing down on Nov. 17.

The end re­sult was that the orig­i­nal ar­bi­tra­tor’s ver­dict was up­held — but not with­out a lit­tle ju­di­cial snip­pi­ness.

“Courts have con­sis­tently in­di­cated over the years that mat­ters that would nor­mally go be­fore ar­bi­tra­tors do not be­long in the court­room sim­ply be­cause one side or the other does not like the out­come,” Jus­tice Ted Scan­lan wrote in the de­ci­sion. “The cost to the pub­lic purse and the par­ties would be pro­hib­i­tive.” Bingo. We’re per­ilously close to a land of cheque­book jus­tice. It’s al­ready clear through a re­view of court cases in Canada that a great num­ber of long-run­ning court cases are pow­ered more by the depth of the lit­i­gants’ pock­ets than by their need for jus­tice.

In­sur­ance com­pa­nies, unions and gov­ern­ments lead the field of big le­gal spenders, and the av­er­age per­son, no mat­ter how griev- ously wronged, has lit­tle choice but to knuckle un­der. It can be worse to win; even a win is a loss, be­cause you can­not re­cover the ocean of le­gal ex­penses that you have to put up to fight your case.

Judges are making the point with greater and greater fre­quency: they don’t hes­i­tate to chas­tise both sides of a case when court bat­tles have more to do with van­ity than with le­gal prin­ci­ples.

But that’s not solv­ing the core prob­lem.

What we’re do­ing is build­ing a le­gal sys­tem — not a jus­tice sys­tem — that can be ef­fec­tively bought by what­ever side has the most money; if you can af­ford to stall, ap­peal and reap­peal, you stand a good chance of ex­haust­ing (or bankrupt­ing) your op­po­nent.

Then you can pound your chest and cheer about the great wrongs you’ve righted, with­out ever hav­ing to ad­mit you’ve just bought your­self a new shiny ju­di­cial bauble.

The prob­lem is that it isn’t any­thing close to jus­tice. And what’s the re­course for some­one who doesn’t have money?

One last thought, back to the Sydney air­port: per­haps, fi­nally, both sides have run out of courts. Be­cause it doesn’t look like ei­ther of them will run out of money or hubris.

Judges are making the point with greater and greater fre­quency: they don’t hes­i­tate to chas­tise both sides of a case when court bat­tles have more to do with van­ity than with le­gal prin­ci­ples.

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