Justice and the pandemic: what needs to change

July 30, 2020

This article is the last of a five-part series examining our courts’ response to the pandemic and what it means for the future of the civil justice system.

There’s no doubt that COVID-19 gave us “an excuse to do things differently,” in the words of Chantelle Cseh, a partner in the dispute resolution, competition litigation and class actions practices in Davies Ward Phillips & Vineberg LLP’s office in Toronto.

And there’s no doubt that we pounced on the opportunity, providing some hope that Canada’s civil justice system, which ranked a sad 100 of the 189 countries that were part of the World Bank’s most recent Enforcing Contracts Indicator, might rise to the prestigious standards the country otherwise enjoys.

The looming question, however, is whether the momentum will continue. Will we extrapolate and institutionalize the standards and processes that COVID-19 has forced upon us?

The greatest change effected by the pandemic came in the way we communicate: e-filing, e-signing, e-scheduling, virtual hearings and conferencing, and greater reliance on written arguments as opposed to oral advocacy, all long relegated to afterthoughts, became the necessary norms in response to the rigours of physical and social distancing.

Political will, historically more or less moribund in its approach to the problems facing the civil justice system, suddenly appeared. In Ontario, Attorney General Doug Downey and Chief Justice Geoffery Morawetz of the Ontario Superior Court, made it clear they were on the same page.

Even more significantly, however, came an implicit recognition that our system must reinvent its gold standard of justice by realizing that achieving perfection in due process, at least partly through accommodating counsel and clients, is not tantamount to achieving justice for litigants. As Morawetz puts it, “timely and effective resolutions,” by way of settlement or trial, are what count. They are the new gold standards, because they are what matters most to parties.

Stephen Morrison, now a resident mediator and arbitrator at Toronto’s Arbitration Place, has watched the system evolve over the course of a legal and business career spanning more than four decades. He’s been a criminal lawyer, co-founder and in-house counsel to a land development and investment company with interests in a wide range of industries, and a partner in a leading Canadian law firm where he focused on the resolution of commercial disputes.

As Morrison sees it, the changes must be small and large, both specific and holistic or philosophical. Among the specific changes he recommends are increasing the monetary jurisdiction of small claims courts to $100,000, appointing full-time judges to these courts, and raising the Simplified Rules threshold to $250,000.

“The overwhelming majority of cases commenced in the province are for these lower amounts, and we need a more expeditious and cost-effective means of dealing with them, without unduly sacrificing fairness and due process,” Morrison said in an e-mail responding to questions from The Lawyer’s Daily. “Right now, with the exception of claims under $25,000, we have one set of Rules of Civil Procedure that govern most other disputes. It is debatable whether this one-size-fits-all approach is serving us well.”

Enhanced pretrial case management also seems to be an underlying theme among those advocating specific changes.

“This would lead to more consistent rulings on pretrial issues, and lawyers would be less likely to engage in gamesmanship with a case management judge who is ultimately going to determine the outcome of the dispute,” Morrison said. “The case manager has and maintains a holistic view of the dispute from beginning to end and is, therefore, better able to rule on issues of scheduling, document production, relevance, etc., in the lead-up to and during the trial.”

A philosophic review of the system, Morrison believes, must prioritize access to justice.

“The efficacy of commercial transactions requires that business people believe that their agreements can be enforced,” he said. “Today, in Ontario, it is generally accepted that 95 per cent to 97 per cent of all cases commenced are settled before trial. If this were simply because the litigants recognized the fairness and justice of their settlements, that would be fine. The reality, however, is that parties too often settle or abandon cases because they simply cannot afford to continue the fight. Ultimately, this state of affairs erodes confidence in the civil justice system.”

Attitudes to alternative dispute resolution methodologies, such as mediation and arbitration, also need to change.

“There is nothing wrong with these tools, in and of themselves,” Morrison said. “In a democracy, however, parties should not be obliged to incur the costs of ‘private justice’ simply because they have lost confidence in the expediency or cost-effectiveness of our public system of civil justice.”

Achieving a gold standard of justice, which is a human pursuit, will “always suffer” from human frailty, Morrison notes.

“I do not believe that the average citizen with his or her smaller case is entitled to a lesser ‘standard’ than the wealthy individual or large corporation,” Morrison said. “But I do believe that procedures need to be modified commensurate with the complexity and importance of the case to ensure that the average citizen can get access to justice, whether the case is big or small.”

The upshot may be that there is no universal standard of justice — at least not one that works for everybody. The best we can hope for, it seems, may be a system that — within the framework of societal and constitutional norms — is more cognizant that the human need for certainty, represented by timely and effective resolution in the context of the civil justice system, is primordial.

Achieving that certainty will take a great deal of will, and a great deal of work. What our experience with the pandemic shows is that we’re certainly up to it.

This is the final article in a five-part series. Read part one: Justice and the pandemic: The new gold standard; part two: Justice and the pandemic: How Canada ranks; part three: Justice and the pandemic: Pushing for modernization; and part four: Justice and the pandemic: stakeholders in the system.

Julius Melnitzer is a Toronto-based freelance legal affairs journalist and communications and media consultant to the legal profession. He can be reached by e-mail directly at [email protected] or at his website, www.legalwriter.net.

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