Civil Procedure in Context

• Author: Janet Walker/Lorne Sossin
• Profession: Osgoode Hall Law School, York University/Faculty of Law, University of Toronto
• Pages: 1-31

1

CHAPTER 1

CIVIL PROCEDURE

IN CONTEXT

A. INTRODUCTION

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

gation. Procedural law is different from other areas of law. 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, particularly through civil litigation.

The effectiveness of civil litigation in vindicating rights and in en-

forcing obligations can shape the nature of those rights and obligations.

This makes 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 with the many features 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 can 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.

CIVIL LITIGATION2

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 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 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 giving the buyer and sell-

er a chance to explain 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 giving 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 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 its objects are not merely

to foster conf‌idence in state-sponsored dispute resolution but also to

advance the interests that are recognized through the other areas of

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

a single f‌ixed set of procedures can be devised to advance fairly and

eff‌iciently the interests of other areas of law in each and every dispute

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

vised to resolve a dispute can affect signif‌icantly the outcome.

Sometimes we are conf‌ident that the procedure in a matter has been

fair and this 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 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 rights and obligations and it could unfairly restrict

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 claims against those of

greater resources. Plaintiffs might fear that losing an interlocutory mo-

tion could disable them f‌inancially from continuing.