Civil Justice Reform

AuthorJanet Walker/Lorne Sossin
ProfessionOsgoode Hall Law School, York University/Faculty of Law, University of Toronto
Civil justice reform is a pressing issue for many Canadian provinces and
territories. A host of recent task forces and government reviews have ex-
plored the subject.1 Some believe that a fundamental overhaul of the civil
just ice ru les is needed .2 Other reform p roposa ls ar ising out of th ese in itia-
tives have ca lled not just for reforms to the r ules of civi l procedure but
also for increased access to legal aid, pro bono representation, and self-help
resources; legal-expense insurance schemes; streamlined and simplif‌ied
1 See, for example, Ont ario’s Civil Justice Reform P roject, “Mandate of the Civil
Justice Reform Pr oject,” online: w /
default.asp; Br itish Columbia Civil Just ice Review Task Force, “Civil Justice
Reform Working Group,” online: ww w.bcjusticere ng_groups/
civil_ justice/civil_ justice.asp; Canadia n Forum on Civil Justice, “Alberta L egal
Service s Mapping Project,” online: esearch/mappin g-en.php;
Courts of Nova Scot ia, “Civil Procedure Rules of Nova S cotia: Rules Revision
Project,” online: ww w.courts.ns.c a/rules_rev ision/ m. For access to
other reviews, s ee the Canadian Forum on C ivil Justice’s website, online: htt p:// /. See the Can adian Bar Associ ation’s 1996 Systems of Civil Jus-
tice Task Force Report, online: w f/systemscivil _tfreport.
pdf. See als o the Ontario Advocates’ S ociety report, Streamlining the Ontar io
Justice System (2006), online: ww /pdf/Fin al_Report.pdf.
2 See British C olumbia, Justice Review Task Force, Effective and Af fordable Civil
Justice: Repor t of the Civil Justice Reform Working Group to the Justice System Task
Force (Victor ia: Civil Justice Reform Worki ng Group, 2006) at 18.
court procedures; t riage measures to a llocate legal re sources to where
they are needed most; and g reater use of mediation and arbitration — in
other words, reform has focused on less expensive, less time-consuming,
more accessible, and more f‌lexible alternatives to civi l litigation.
These reform proposals t ypically are justif‌ied by recourse to t wo
primary rationales: f‌irst, the need to ensure judicial economy and a
principled, cost-effective allocation of court resources; and second, the
need to ensure access to justice for litigants who might be excluded from
civil litigation by reason of cost and delay. Related to this latter rationale
is growing concern over the increasing number of “self-represented,” or
“unrepresented,” civil litigants who appear before the courts.
Diverting cases from expensive and time-consuming l itigation can
be achieved t hrough a var iety of administrative and procedural initia-
tives. Of course, one alternative i s to take no initiative and allow ma r-
ket incentives to clear civil court dockets. After a ll, the reason so few
cases reach the resource-intensive stages of litigation is ty pically be-
cause the time and cost involved serve to propel parties either to settle,
obtain default judgments, or simply abandon the claim.3 Yet, while this
laissez-faire logic may reduce the number of cases in the civil courts,
it likely would not do so in a rational or just fashion. Consequently, in
virtually every jurisdiction in Canada, civil justice reform has involved
administrative and procedural reform projects designed to divert cases
to settlement, medi ation, disposition before trial, resolution by way of
summary trial, or case-managed litigation, all in order to ensure that
deserving cases have access to the civil courts and that the goals of
economic eff‌iciency, fair proceedings, and just outcomes are balanced
effectively and in the public interest. Civil justice has never operated
according to a “one-size f‌its all” model (as the well-established exist-
ence of sma ll clai ms court s across the countr y attests), but increasing
variation in civil justice options is a clear trend. In thi s sense, civil jus-
tice is moving towards a kind of “triage” or “rationing” model, where
more serious and less serious civil justice needs lead to different pro-
cedural streams wh ich are tailored to those need s.
The extent to which the competing priorities in civil justice systems
have been effectively balanced through vary ing procedural streams re-
mains, in most Canadian jurisdictions, an open question. At a min-
imum, however, the fact that nea rly every jurisdiction in Canada has
3 The f‌igure often cited is that 95 percent of claim s f‌iled do not reach tria l. For
those that do, an O ntario study of civil ju stice in the mid-1990s estimate d that
the cost of litigat ing a claim to a f‌inal re sult was $38,000. See Minist ry of the
Attorney Genera l, Civil Justice Review: Supplemen tal and Final Report by Rober t
Blair & Heath er Cooper (Toronto: Ontario C ivil Justice Review, 1996) at 143–45.

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