I’m blogging this week about a concern that we all have, increasing access to justice.
About twenty years ago, the process of a major reform of English procedural law began with a report by Sir Harry Woolf suggesting changes to both litigation culture and procedures. The upshot was the English Civil Procedure Rules which came into force in 1999 and have now seen their 88th update. Two fundamental changes were made: first, the English rules were made subject to an “overriding objective” statement similar to what is now set out in sub-rules 1.04(1), (1.1) of the Ontario Rules. Everything that came before in terms of precedent was made more or less obsolete as a result. Second, there was a change in litigation culture from a party-controlled process to a Court-controlled process. We have gone through much of the same discussion in Canada and are moving in the same direction, albeit along a more difficult road as a result of the federal nature of our legal system and our own evolving attitudes to the adversarial principle. [You can refresh your memory by reading the Canadian Judicial Council’s Access to Justice: Report on Selected Reform Initiatives in Canada and the most important Supreme Court of Canada decision on procedure, Hryniak v. Mauldin, 2014 SCC 7.]
I don’t think that “litigation culture” has changed all that much since the Hryniak v. Mauldin, but cultural change is a tall order and will take time. The question to be considered is how we as legal professionals can further necessary reform by going along (rather than resisting) our attitude to litigation. Consider a case like Sanzone v. Schechter, 2016 ONCA 566 (Ont. C.A.), which deals with a summary judgment motion against an unrepresented litigant in a medical malpractice case. Brown J.A. encouraged the use of pre-trial conferences in such circumstances: “[s]ingle-judge case management, which addresses all the steps in a proceeding, not just the preparation of a single motion, offers a powerful tool by which judges can discharge their duty to accommodate self-represented parties’ unfamiliarity with the litigation process to enable them to present their case to the best of their abilities.”
As always the bottom-line is a financial one. As advocates, we owe it to our clients to pay attention to the global cost of litigation and ensure efficiency. As officers of the Court, we must be mindful of our call on judicial resources. As members of the legal profession, we owe it to ourselves and our clients to call for adequate funding. All of this is very important to how we do our work and how we are perceived by the public. To my mind, it is the lawyers’ creativity and willingness to work cooperatively and collaboratively in their clients’ interests that is most important.
Have a very nice day.
David