Civil Procedure in Context

AuthorJanet Walker/Lorne Sossin
ProfessionOsgoode Hall Law School, York University/Faculty of Law, University of Toronto
This book is about the process of resolving disputes t hrough civil liti-
gation. Procedural law is d ifferent from other areas of l aw. Other areas
of the law concern the rights and obligations of persons in society. Pro-
cedural law concerns the way those rights and obligations are given
effect, particula rly through civil litigation.
The effectiveness of civ il litigation in vindicating rights and in en-
forcing obligations can shape the nature of those rights and obligations.
This ma kes procedure an important part of the understanding of any
other subject of law. And it means that much of the study of procedure
is concerned w ith eff‌icacy and eff‌iciency. But there is more to proced-
ure than eff‌icacy and eff‌iciency. The process of resolving disputes is
a signif‌icant social interaction one that ref‌lects longstanding trad-
itions and profoundly held beliefs that are important foundations of
the society in which we live. In this way, the study of procedure is also
concerned w ith t he many feature s of litigation that contribute to our
conf‌idence that it is fair and just.
Consider this: most disputes at least those between two par-
ties — could be decided with the toss of a coin. As a means for resolv-
ing disputes, a coin toss is cheap, it is fast, and it ca n be done almost
anywhere at any time. But we would probably not consider using a coin
toss to resolve any but the most insignif‌icant disputes. Many would say
that it just would not be fair.
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 justif‌ied or whether the good s 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 u s an opportunity to create or to revisit the
standards for deciding in future cases whether it was wrong for the per-
son to have refused to pay. Maintaining standards is helpful for others
who need to know what to do under similar circumstances.
In any event, we would probably say that giv ing the buyer and sell-
er a chance to explai n the circumstances under which their dispute
arose, so as to decide what should happen as a result, is an important
way to maintain public conf‌idence in state-sponsored dispute resolu-
tion. When we think of all of the ways in which we go about givi ng the
parties a chance to explain how a dispute arose and to participate in
deciding how it should be resolved, we are thinking of the principles
that underlie the law of procedure. That is what thi s 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 its objects are not merely
to foster conf‌idence in state-sponsored dispute resolution but al so to
advance the interests that are recognized through t he other areas of
law. However, to suggest that civil procedure is value-neutral or th at
a si ngle f‌i xed set of procedures can be devised to advance f airly and
eff‌iciently the interests of other are as of law in each and ever y dispute
would be misleading. On the contrary, the method of proceeding de-
vised to resolve a dis pute can affect signif‌icantly the outcome.
Sometimes we are conf‌ident that the procedure in a matter has been
fair and t his leads us to accept the outcome as just. For example, we
may be disappointed with the result but accept that the decision maker
was able to consider all the relevant evidence and arguments. However,
on other occ asions, 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 r ule of procedure that required all statements of cl aim
to reveal a well-recognized cause of action could slow the pace of rec-
ognizing new legal rights and obligations and it could un fairly restr ict
the consideration of claims that 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 t hose of
greater resources. Plaintiffs might fear that losing an interlocutory mo-
tion could disable them f‌inancially from continuing.

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