Her Honour Madam Rosalie Abella, a Justice of the Supreme Court of Canada, recently penned an opinion column in The Globe and Mail titled, “Our Civil Justice System needs to be Brought into the 21^st Century” (subscription required). 

While I came to agree with Justice Abella’s conclusion, she actually made two arguments in order to get there.  And while I agree with her second argument, I cannot bring myself to agree with her first.

Her first argument is basically just “Change for change’s sake.”  She notes that the adversarial system of civil litigation we use today is pretty similar to the one used at the turn of the (last) century.  She then goes on to argue that, since the airplane and the Internet have been invented in that time, we should similarly change the way we resolve civil disputes. 

The flip side to the sentiment that “we should change with the times” is “if it ain’t broke, don’t fix it.”  And of course, our adversarial system of civil litigation has a lot of things to commend it.  It is a system which has been honed and refined over centuries and it does a fairly good job of serving its objectives.  While other systems of dispute resolution have been conceived and tried our adversarial system remains, to paraphrase Churchill, the worst system except for all the others which have been tried from time to time.  So I would disagree with the suggestion that we ought to make any substantial changes to our civil litigation system solely on the basis that it is an old system.  We should not tear down a fence unless we know why it was put up in the first place. 

That being said, Justice Abella’s second argument really lays bare the biggest shortcoming of our “least bad” system.  She persuasively argues that the system is just too inaccessible for regular people, for the dual reasons that (i) it is too expensive and (ii) it takes too long.  One cannot really disagree with her assertion that it should not take litigants “forever and thousands of dollars to decide where their children live, whether their employer should have fired them, or whether their accident was compensable.” 

The gap between reality and expectation for participants in the civil litigation system can be profound.  I blogged last week about an employment case in Ontario which took eleven (11) years to go from start to completion at the Court of Appeal.  By comparison, a few years ago I represented an employee in an employment case that was decided by the Court of Appeal eleven months after the employee was fired.  And do you know what they told me after it was over?  They said, “If I knew it would have taken this long, I never would have done it.”  And that was in a case which, by the usual standards, was resolved quickly.

In my own practice, I have seen a fair number of clients walk away from good, promising cases—cases worth tens or even hundreds of thousands of dollars—because they are not willing to wait 1, 2, or 3 years before seeing the inside of a courtroom, or because they are no longer willing to continue funding litigation which will go on for another 1, 2, or 3 years. 

The people who are most likely to be caught on the outside are those who can’t or won’t sink thousands of dollars, and years of their lives, into fighting a legal dispute – even though their case may be just.  Justice Abella perspicaciously identifies this problem when she says, “They want their day in court, not their years.”

Normally, this is where I would criticize the author for identifying the problem but not identifying any solutions.  But I can’t criticize Justice Abella here, because I don’t have any answers at the moment either.  The civil justice system serves multiple goals, among them efficiency, truth-seeking, and justice.  Major reforms to improve the outcomes in one area are almost certain to be at the expense of the other goals of the justice system.  The legal system finds itself stuck in the classic consumer quandary of “Quick, cheap, good – pick two”. 

What should we do?  Eliminate or severely curtail pre-trial discovery?  That would certainly get us to trial more efficiently.  It would also bring back the old days of “trial by ambush”, which the profession definitely wants to avoid.  Getting rid of “trial by ambush” was a major reason for the significant expansion of pre-trial discovery in the first place.  We can make our civil litigation system quicker and cheaper, but it won’t be as good.

While I can’t say what we should do, I can make a suggestion about what we should not do.  We should not do mandatory mediation.

In my opinion, the experiment of mandatory mediation is a failure and should be abandoned.  For a number of years now, any civil lawsuit in Ottawa, Toronto, or Windsor has been required to go to mandatory mediation as a necessary pre-condition to going to trial.  And why is this such a bad a idea?  Simply put, if you want to make the process of a lawsuit quicker and cheaper, you should not add additional procedural hurdles to the lawsuit.  Mandatory mediation adds both time and expense and makes the overall lawsuit take even longer.  I cannot understand why anyone thought that the system would be made more efficient by adding an extra step to civil lawsuits: it is impossible to make a journey quicker by adding pit stops.  If we want to make the process of civil lawsuit a little bit quicker and a little bit less expensive without sacrificing quality, we can start by eliminating the costly and time-consuming step of mandatory mediation.