Civil Justice Reform

• Author: Janet Walker/Lorne Sossin
• Profession: Osgoode Hall Law School, York University/Faculty of Law, University of Toronto
• Pages: 245-269

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CIVIL JUSTICE REFORM

A. INTRODUCTION

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 ww.civiljusticereform.jus.gov.on.ca/english /

default.asp; Br itish Columbia Civil Just ice Review Task Force, “Civil Justice

Reform Working Group,” online: ww w.bcjusticere view.org/worki ng_groups/

civil_ justice/civil_ justice.asp; Canadia n Forum on Civil Justice, “Alberta L egal

Service s Mapping Project,” online: http://cfcj-fcjc.org/r 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/revision.ht m. For access to

other reviews, s ee the Canadian Forum on C ivil Justice’s website, online: htt p://

cfcj-fcjc.org/news /. See the Can adian Bar Associ ation’s 1996 Systems of Civil Jus-

tice Task Force Report, online: w ww.cba.org/cba/pubs/pd f/systemscivil _tfreport.

pdf. See als o the Ontario Advocates’ S ociety report, Streamlining the Ontar io

Justice System (2006), online: ww w.advocates.ca /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.

CIVIL LITIGATION246

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.