In my last column, I identified the access to justice crisis as the greatest constitutional challenge of our time.
I argued that it has the potential to create a constitutional tsunami that may rip through the fabric of our Constitution by washing away the claims of universality of rights and threaten the legitimacy of our Constitution.
How do we avoid this dark day? I wish I had the silver bullet that could slay the access-to-justice demon, but I do not. The best that I can do is to suggest a framework for tackling the problem and offer some concrete proposals in this and future columns. In this column I argue that the time has come to start rationing civil justice in Ontario.
We need a conceptual revolution in thinking about access to justice. We need to revisit our sacred cows and come to terms with what is happening on the ground. We need to adjust the system to fit the needs of its users, not try to make the users adapt to the system. We need to break free from the old orthodoxies and consider all possibilities.
We also need all the players in our justice system to accept responsibility for the problem and to take responsibility for its solution. It is not somebody else’s responsibility. It is our collective responsibility, as lawyers, jurists, and citizens.
We need to begin with the process in the justice system - by slashing it. A decade ago, Justice Rosalie Abella gave a provocative and stirring address at a retreat of the benchers of the Law Society of Upper Canada.
Unfortunately, her words and warnings have become timeless: “We have become so completely seduced by the notion, borrowed from criminal law, that process ensures justice, that we have come to believe that process is justice . . . People want their day in court, not their years.”
Recent reports like Code-LeSage and Osborne acknowledge the process problem. They call for changes to the legal and judicial cultures including abandoning the belief in the divine right of unlimited discovery and strengthening judicial intervention in pre-trial and trial proceedings.
The time has come to consider rationing civil justice. These are strong words and I choose them deliberately. Justice Coulter Osborne used the more palatable concept of proportionality but I do not think that the concept of rationing is that dissimilar.
The idea of rationing is obviously more politically charged and more urgent, but that is what we need. We ration scarce resources in times of crisis like wars and droughts. We ration valuable resources like healthcare in order to achieve various social goals including universality of access and equal treatment of all users.
Rationing civil justice is a less extreme proposal, but conveys both the sense of urgency and importance of the issue.
We are already rationing at the highest levels of our justice system. It took a long time, but the Supreme Court of Canada eventually imposed time limits on oral argument and on the length of factums that apply to all litigants, unless there are exceptional circumstances.
Lawyers that once claimed that they could not possibly argue their case in an hour or in 40 pages had to adjust. We now accept these rules as the norm. We all know that is more difficult to write a shorter factum than a longer one; to condense one’s presentation into 15 minutes, instead of speaking for 45.
The rationing of civil justice is also occurring in our Small Claims Courts and under Simplified Procedure rules. The concept should be applied across the board. Rules regarding time limits for written and oral submissions in motions and trials should be applied throughout the justice system.
They can be imposed by practice direction by the regional senior justice, the civil rules committee, or if need be they should be authorized through legislative change and imposed by the government.
To be clear, the goal is to reduce the costs to litigants of going to court. If lawyers spend less time in court, clients will pay less. More clients will afford to go to court. For more people, justice will be a realistic possibility instead of a pipe dream. Rationing civil justice is not a panacea to the access to justice problem but it is a necessary start.
We need to innovate. We have no choice. With much effort and some luck we can turn the tide against the constitutional tsunami.
Adam Dodek is a professor at the University of Ottawa’s Faculty of Law. He can be reached at [email protected].
