The Walrus

Justice for Some

It’s time to fix our convoluted, inaccessib­le civil court system

- By Gerard J. Kennedy

Ayoung woman sits across the desk, confident yet nervous. Zeynep has been waiting for me in a busy, oneroom pro bono legal clinic in downtown Toronto. (Some names have been changed to maintain confidenti­ality.) The clinic is tightly tucked into a first-floor corner of a University Avenue office building, and Zeynep has been here for the better part of a day. She explains that her former contractor has put a lien on her home and is taking her to court, alleging she failed to pay him for work he’s done on the property. The lien is for less than $10,000 — a modest sum by the standards of civil litigation but a hugely consequent­ial amount for Zeynep, who recently graduated from university and has few assets apart from the house she co-owns with her mother.

I explain that having the lien removed could take years and cost tens of thousands of dollars. The path of least resistance may simply be paying the contractor what he says he is owed, even though Zeynep insists he did not perform the work he claims and that the work he did do is deficient.

By the end of this day, and over the years, I have consulted with many clients who are somewhere between bewildered and terrified by the lawsuits they are immersed in. The cases have arisen from everyday circumstan­ces gone awry, including questionab­le employment terminatio­ns or failure to read the details of long standard contracts. And the people mired in these cases almost always have two things in common: they cannot afford a lawyer (orbelieve, often for good reason, that it isn’t worthwhile to retain one), and they don’t know how to navigate our often slow, out-of-date civil justice system.

Odds are that their experience­s have been unpleasant, even life ruining. Odds are that this has been needless.

Recent reports rank Canada twentieth among twenty-four European and North American countries in terms of access to justice, and fifty-fourth out of sixty-six surveyed countries for access to legal counsel. One study notes that, in Canada, depending on court and jurisdicti­on, more than 50 percent of individual­s represent themselves in legal proceeding­s, usually not by choice. Another found that over a three-year period, 11million Canadians faced civil or family justice problems, many of which they considered serious and difficult to resolve.

There are numerous causes for our courts’ inaccessib­ility— from overburden­ed judges to wilful obstructio­nism, in a few cases. But a principal issue is an excessivel­y complex system of civil procedure.

Then there is the matter of legal fees. Lawyers frequently charge hundreds of dollars an hour for their services — a daunting sum for most, and a perverse, built-in incentive for lawyers to prolong matters. In many provinces, there is no legal-aid funding available for civil suits.

Despite widespread acknowledg­ment within the legal community and by policymake­rs that access to our civil courts is badly constraine­d, the issue rarely receives the same attention as comparable problems in the criminal justice system. To some extent, this is understand­able: civil cases don’t often make for attention-grabbing headlines. But civil litigation can upend lives. As Thomas Cromwell, a retired Supreme Court justice, has pointed out, when the cost — in time and in expense — of obtaining a legal service exceeds its value, we have a serious problem.

More than 800 years ago, the Magna Carta codified legal rights and practices in England. Among its provisions were several aimed at improving access to justice by formalizin­g a dispute-resolution process in which judges travelled across the country dispensing the king’s justice when precedents recognized that one party had committed a wrong for which another was entitled to redress. If John killed Richard’s cow, for instance, a judge could order John to compensate Richard for the value of the cow — making Richard whole again and curbing vigilante justice. By requiring common-law courts to meet at establishe­d times and places, the iconic document helped create a more regular system of civil litigation.

Such courts could generally only award financial compensati­on, even if justice was best served by other remedies, such as compelling someone to cease a particular behaviour. A separate system developed to handle these situations: the Court of Chancery, which had the power to issue equitable remedies such as injunction­s. By the 1800s, the two courts had been running separately for centuries — all in addition to a criminal court system that had its own procedures and binding precedents. Few lay people understood the technicali­ties, and the complexity of the legal system made it nearly impossible for many people to get a fair hearing.

Civil courts in Canada, largely modelled on the English system, inherited these difficulti­es. A series of late nineteenth-century reforms created unified civil court systems in both countries and helped for a time. In the years since, however, new procedural steps have been added, each of which individual­ly could be said to increase the likelihood of a fair resolution but which, taken together, often add disproport­ionate time and expense. At the same time, the system assumes that a trial is the gold standard for adjudicati­on, when it is often unnecessar­y. The upshot: Canada’s civil litigation process is, once again, too frequently the obstacle rather than the path to resolving matters quickly and fairly.

When a drunk Marco Muzzo got behind a wheel of a car in September 2015 and killed the three children of the Neville-lake family along with their grandfathe­r the public was outraged. Muzzo pleaded guilty to four counts of impaired driving causing death and was sentenced to ten years’ imprisonme­nt. The crash in Vaughan, Ontario, is an example of a situation where a criminal act could also entitle the victims to a civil remedy, and the Neville-lake family has launched a lawsuit against Muzzo.

But not all crimes have a victim who can seek financial compensati­on (drug traffickin­g and gun possession jump to mind), and most civil cases do not involve events that can lead to criminal charges: car accidents are often “just” accidents, and breaching a contract is not a crime at all.

Civil and criminal cases can cover the same subject matter, in other words, but frequently do not. Nor do they serve the same purposes. The civil system’s aim is to compensate victims; criminal conviction expresses society’s condemnati­on of, and desire to prevent, dangerous, harmful, or immoral behaviour. In doing so, the criminal system puts an accused individual’s liberty at stake, and the consequenc­es of a wrongful conviction can be calamitous not just for the convicted but for the public’s faith in the criminal justice system as a whole.

It is therefore natural that criminal and civil procedure have evolved quite differentl­y. There is a constituti­onal right to counsel, and to a speedy trial, for people accused of crimes but not for defendants in civil suits. The standard of proof in each system is also significan­tly different: beyond a reasonable doubt for criminal conviction, while a civil suit need only be proven on the balance of probabilit­ies — essentiall­y, “more likely than not.” This means the threshold for pursuing a civil case is lower. But the lower standard can make both claimants and defendants feel they stand a chance, increasing the number of cases in the system.

In addition, while only the prosecutio­n needs to lay out its evidence in advance in a criminal case, all parties must go through the time-consuming discovery process in a civil action. Discovery — a preliminar­y procedure in which parties in a case exchange documents and often provide testimony — can help lead to well-informed settlement­s and ensure that, if a trial is needed, no one is surprised by the evidence presented there. Once quite modest in scope, in recent decades there has been a push to expand the use of discovery in civil cases. Unfortunat­ely, this has backfired to some extent, making many

civil suits immensely time-consuming and expensive. As the system lags, memories become stale and evidence less reliable, decreasing the likelihood of a fair resolution.

Eftihios markoulaki­s had worked as a civil engineer for SN C-lavalin for more than forty years but lost his job there at the age of sixty-five; the company let him go due to a shortage of work. Markoulaki­s tried unsuccessf­ully to find another job. He filed a suit for wrongful dismissal and asked that his former employer provide adequate compensati­on in lieu of having given him notice of terminatio­n.

A full-fledged civil suit would have required drafting pleadings, going through discovery, and, ultimately, proceeding with a trial. But the facts surroundin­g his dismissal seemed clear. Was a trial after full discovery appropriat­e, much less necessary? As it turned out, no.

There is a way to expedite matters, which Markoulaki­s pursued. Judges can grant a summary judgment after a lawsuit has been filed, deciding all or part of a case without a trial. Historical­ly, this was very rare. But in a 2014 ruling, the Supreme Court of Canada clarified that courts are to interpret the power to issue summary judgments broadly, specifying that this is to help ensure access to justice. The Ontario Superior Court of Justice granted Markoulaki­s’s motion for summary judgment in 2015, awarding him twenty-seven months’ pay.

Not everyone is pleased with the increasing use of summary judgments. Some judges have noted that it’s impossible to fully digest the evidence in some cases without a trial. Moreover, motions for summary judgment rarely feature in-court testing of a witness. While this process is an imperfect measure of credibilit­y, it does have merit: criminal defence lawyers repeatedly emphasize that they need to see a witness’s face, observe their demeanour, and ask follow-up questions in order to effectivel­y assess their claims.

David Rankin, a litigator at Osler, Hoskin & Harcourt in Toronto, supports the greater reliance on summary procedures but has some reservatio­ns about the disappeara­nce of civil trials. Not being able to cross-examine key witnesses in a criminal trial would “likely be declared unconstitu­tional,” he says. “If a practice is unconstitu­tional in the criminal context because it impedes the search for truth,

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