Chapter 1: Civil Procedure in Context

• Pages: 1-34
• Author: Janet Walker,Lorne Sossin,Erik S. Knutsen,Gerard J. Kennedy

CHA PTER 1

CIVIL PROCEDURE IN

CONTEXT

A. INTRODUCTION

This book is about the process of resolvi ng disputes through civil liti-

gation. Procedural law is different from other areas of law. Other areas

of the law concern the rights a nd obligations of persons in society. Pro-

cedural law concerns the way t hose rights and obligations are given

effect, particula rly through civil litigation.

The effectiveness of civil litigation in v indicating rights a nd in en-

forcing obligations can shape the nature of t hose rights and obligations.

This makes procedure an important part of the understandi ng of any

other subject of law. And it means that much of the study of procedure

is concerned with efcac y and efciency. But there is more to proced-

ure than efcacy and efciency. The process of resolving disputes is

a signicant social interaction —one that reects longstandi ng trad-

itions and profoundly held beliefs that are import ant foundations of

the society in which we live. In thi s way, the study of procedure is also

concerned with the many features of litigation that contribute to our

condence that it is fair and just.

Consider this: most disputes —at least those b etween two par-

ties — could be decided with the tos s of a coin. As a means for resolv-

ing disputes, a coin toss is cheap, it is fast, and it can be done almost

anywhere at any time. But we would probably not consider using a coin

toss to resolve any but the most insigni cant disputes. Many would say

that it just would not be fair.

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CIVI L LITIGAT ION2

Take, for example, a situation in which a person refused to pay for

goods that had been delivered under a contract and complained that

the goods were defective. We might say that it would not be fair just to

toss a coin because we would never know whether or not the refusal to

pay was justied or whether the goods were defective. Tossing a coin

to decide who should prevail would tell us who was lucky, not who was

right. We might also say that deciding in that way would not be helpful

because it would not give us an opportunity to cre ate or to revisit the

standards for deciding i n future cases whether it was wrong for the per-

son to have refused to pay. Maintaini ng standards is helpful for others

who need to know what to do under similar circumstances.

In any event, we would probably say that giving the buyer and sell-

er a chance to explain t he circumstances under which their dispute

arose, so as to decide what should happen as a result, i s an important

way to maintain public condence in state-sponsored dispute resolu-

tion. When we think of all of the ways i n which we go about giving the

parties a cha nce to explain how a dispute arose and to participate in

deciding how it should be resolved, we are thinki ng of the principles

that underlie the law of procedure. That is what this book is about.

The study of procedural law is different from the study of other

areas of law, such as the sale of goods, because it s objects are not merely

to foster condence in state-sponsored dispute resolution but also to

advance the interests th at are recognized through the other areas of

law. However, to suggest that civil procedure is value-neutral or that

a single xed set of procedures can be dev ised to advance fairly and

efciently the interests of other are as of law in each and every dispute

would be misleading. On the contrar y, the method of proceeding de-

vised to resolve a dispute can affect the outcome in signicant ways.

Sometimes we are condent that the procedure in a m atter has been

fair and this le ads us to accept the outcome as just. For example, we

may be disappointed w ith the result but accept that the decision maker

was able to consider all the relevant evidence and arg uments. However,

on other occasions, we may be struck by the injustice of the outcome

and believe this to have been a product of an inadequate procedure.

For example, a rule of procedure that required all statements of claim

to reveal a well-recognized cause of action could slow the pace of rec-

ognizing new legal r ights and obligations and it could unfairly restr ict

the consideration of claims t hat we believe meritorious. Similarly, a

rule of procedure that precluded the exercise of discretion in awarding

costs could discourage the commencement of claim s against those of

greater resources. Plaint iffs might fear that losing an interlocutory mo-

tion could disable them nancially from continuing.

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Civil Proce dure in Context

The incentives and disincentives underly ing the rules which govern

civil litigation reect broader social values. For example, most modern

rules seek to encourage settlement or the early re solution of disputes.

Similarly, access to justice has emerged as an overarching value in-

forming the interpretation of almost all these rules. As the Supreme

Court stated in Hyrniak v Mauldin,1 “Ensuring access to justice is the

greatest challenge to the r ule of law in Canada today. Trials have be-

come increasingly expen sive and protracted. Most Canadian s cannot

afford to sue when they are wronged or defend themselves when they

are sued, and cannot afford to go to tri al. Without an effective and ac-

cessible means of enforcing rights, the rule of law is threatened. With-

out public adjudication of civil cases, the development of the common

law is stunted.”

The dynamic interplay between the law of procedure and substan-

tive law is one of the things t hat makes the study of civil procedure

so interesting. Critical examination of even the most seemingly tech-

nical rules can give us insight into our attitudes toward the kinds of

grievances th at we regard as worth airing and t hose that we regard as

worth discouraging. The study of procedure tells u s much about the

approach that we think should be taken to d isputes between persons

and about what we think should be accepted as fair and adequ ate in

resolving them, both in determining what happened when the fact s

themselves are in di spute and in determining what should sufce as an

adequate resolution. What value do we attach to the speed of the result

in proportion to the accuracy of that result? How much opportunity to

participate do we believe the parties should be given? How much do we

think the proces s should cost the parties, and who should be respon-

sible for bearing those costs? All of these questions are inherent in our

procedural values. In thi s way, the law of procedure tells us much about

who we are as a society.

B. CIVIL LITIGATION AND OTHER FORMS OF

DISPUTE R ESOLUTION

Litigation is just one way among many of resolving d isputes between

persons in our society. The vast majority of disputes th at occur between

individuals and between businesses are re solved informally without

any steps being taken toward commencing an action. Grievances are

aired, amends are made, compromise s are reached — all without any

2014 SCC 7 at para 1 [Hyrniak]. 1