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The subject of access to justice is at the forefront of legal debate and commentary. There is widespread concern that Court processes move too slowly and cost too much, potentially putting the system beyond the reach of ordinary Canadians. These important issues have not been much discussed in the context of what actually occurs during the progress of a legal claim. There is much to be said for the view that moving an action quickly and efficiently to trial, without burdening the system with costly pre-trial procedures such as motions, case conferences, mandatory mediation and case management would go a long way to addressing the problem. Experience shows that the best method for bringing a claim to resolution is to have a trial date looming before the parties. The faster this can be done, the less costly the litigation will be.

Justice David Brown of the Ontario Superior Court of Justice offered his thoughts on this subject in a June 25, 2013 decision, York University v. Markicevic, 2013 ONSC 4311. The decision received attention in the legal press at the time of its release, but is of sufficient importance that it’s worth revisiting and quoting at length. It is unusual for a senior judge to issue such blunt opinions about our litigation system. Justice Brown’s comments on the decline of the system and the morale of fellow judges are especially noteworthy. Here’s what he said:

[1]               Formally, this motion involves a request by one defendant, Mima Markicevic, for an order discharging a certificate of pending litigation which I previously had ordered against her Vaughan Residence, on the provision of alternate security for the proprietary claim of the plaintiff, York University. More substantively, the motion raises important questions about the practical availability of access to the civil justice system.

[2]               Access to the civil justice system requires ensuring that courts are made accessible to all, not just to the wealthy, but such access must be achieved in ways which are fair to the legitimate interests of both parties to a lawsuit. How to achieve such fair access to our system of civil justice is not a debate about abstract concepts. Maintenance of the cohesion of our civil society depends, in significant part, upon ensuring that those in society who have legal disputes enjoy access to the public civil justice system in order to secure an adjudication of those disputes. Lack of access to justice is not the negative of some desired abstract concept; lack of access to justice puts us on the road to unwinding the weave which holds our civil society together.

[3]               The present case presents a concrete example of the problem. York University is making serious allegations of fraud against one of its former construction executives, Michael Markicevic, as well as against his wife, Janet Fleming, and his daughter, Mima Markicevic.  Markicevic vigorously denies the allegations. His wife and daughter state that they had no part in any wrong-doing and have not received any benefit from any wrong-doing. The lawsuit has been on-going for over a year; it started on January 26, 2012. I will describe what has happened in this proceeding in a bit more detail in a moment, but suffice it to say for this overview, some year and a half after this action commenced, it is not much, if any, closer to a trial date.

[4]               So, here the parties stand, five months after my decision on their first round of summary judgment and Mareva motions, no closer to trial, and with one defendant asking for access to her property in order to fund the defences of herself, her mother and her father.

[5]           Achieving access to the civil justice system requires taking concrete steps. The most concrete and most readily available step to improving access to justice involves judges consistently making greater use of their inherent powers to control the civil justice process to ensure that those who seek justice actually end up in a court room where justice is dispensed, without encountering financial exhaustion before reaching the threshold of the court room.

[6]               Why do judges not exercise greater control over the civil justice process to achieve that end?

[7]               Are they fearful that if they try something creative to move a case along, they will be slapped down by an appellate court? Perhaps that thought lingers in the recesses of their minds, but decisions of appellate courts of this province in recent years have supported such efforts by trial and motion court judges, as long as the creative solutions are fair.

[8]               Are judges becoming indifferent to the task of attempting to control the civil justice system?  Here we are moving closer to the present day reality on the ground. One cannot overstate the oppressive effect on judicial morale of the endless waves of cases which seem to be going nowhere in a civil justice system that is sinking. Why try to be creative when the system, with a life of its own, grinds relentlessly on and downward?

[9]               Have judges lost touch with how to move a case along to a final adjudication? For the better part of 20 years the relentless mantra has been – trials are bad, mediation will solve all problems.  Of course, it hasn’t.  As a prominent Toronto litigator, Mr. Alan Lenczner, observed in a speech last year about the current state of the Canadian justice system:

“There is an unavoidable message, much as we do not wish to hear it – We are in a decline!”

Let me venture the view that judges, as a collective, are losing the will and ability to move cases along to trial because we are led (wrongly) to believe that trials represent a failure of the system.

[10]           Where does all of this leave the person who really matters – the litigant in the civil justice process, who more often than not simply wants to get before a judge, tell his or her story, and get a decision? If one were to describe the progression of a civil lawsuit, from its start to finish, as akin to a walk from one side of a field to the other, with the determination of  the parties’ legal rights awaiting on the far side of the field, then litigants increasingly are coming to see that walk as one involving small, tentative, money-draining steps, with each side probing the ground ahead, through interlocutory motions, to ensure no tactical obstacle or hidden mine lurks beneath the surface of the field. As the parties’ snail-paced walk proceeds across the field, and as the money flows out of their pockets, all too often, at the point when the parties’ financial resources are exhausted, they raise their heads, look across the field, and discover that the other side – whence rests the final decision on their dispute – remains elusively distant and beyond their practical reach.

[11]           That should not be. Such a state of affairs reflects an unacceptable failure on the part of our civil justice system.

[12]           The primary purpose of our civil justice system must be to enable those who have legal disputes against each other to secure an impartial third-party adjudication of their disputes. I have come to the conclusion that the best way to adjudicate the merits of the case is not through endless interlocutory motions, where slivers of the merits of the case are subjected to intense scrutiny, but to no final result. Nor is it through making every case pass through the hoop of rigid mandatory mediation, when the nature of some disputes dictates getting before a judge as soon as possible. Nor does the solution lie solely in case management which, unless relentlessly focused on pushing a case on to trial readiness can turn into as unproductive a quagmire as interlocutory motions. The best way is by forcefully managing the parties to trial. And not a trial in the media, as is happening in this case, where the plaintiff’s allegations have been picked up by and repeated by the local news media. But a trial in the public courts of this province.

These are strong words. I am particularly struck by the statement that “We are led (wrongly) to believe that trials represent a failure of the system” and that the “best way to adjudicate the merits of a case…is by forcefully managing the parties to trial.” I agree with the comments of Justice Brown. Not because mediation or settlement is bad, but because focusing on moving an action to trial will work for the benefit of the parties.

The vast majority of civil claims, over 95%, settle before trial. That won’t change if unnecessary pre-trial procedures are eliminated. What it will do is streamline the system, and help to ensure that the parties are not giving up on their legal rights out of sheer exhaustion or frustration.

Image via Flickr courtesy of Army Corps of Engineers.