Court Reform – Access to Justice
Canadian labour-management arbitration offers advantages to court reform advocates. Attractive features of arbitration include simplified rules, specialist arbitrators, and the availability of mediation and other alternative dispute resolution procedures. Civil justice reform advocates in Canada have pressed for systems that contain features of the existing labour-management arbitration system.
A frequent concern with the existing civil justice system includes the many steps required to bring a dispute to trial. These steps may vary among civil justice systems, but they usually include the following:
- responses to demands for particulars
- documents and lists of documents
- requests for trial
- expert reports
- examinations for discovery of witnesses
- pre-trial applications
- pre-trial conferences
- case management meetings
- court-directed mediation sessions
- settlement conferences.
For some proceedings such as small claims, the procedure is simplified, with many of the steps eliminated and strict time limits or prohibitions imposed on examination for discovery. As discussed in this paper, the arbitration system offers attractive, simplified procedures.
Civil justice reform initiatives in Canada have been discussed in the context of “access to justice”. One of these initiatives, led by the Rt. Hon. Beverley McLachlin, Chief Justice of Canada, was the appointment of the National Action Committee on Access to Justice in Civil and Family Matters (NAC). The NAC, chaired by the Hon. Thomas Cromwell, Justice of the Supreme Court of Canada, issued its report in October, 2013. In the NAC Report, the Committee judged the civil justice system to be too complex, too slow, and too expensive. The Report also noted that, while there are many dedicated people who try to make the court system work, major change is needed.
Similar comments about the civil justice system in Canada have been made in previous studies. For example, the 1996 Canadian Bar Association Systems of Civil Justice Task Force Report stated as follows:
The Task Force discovered that many Canadians feel that they cannot exercise their rights effectively because using the civil justice system takes too long, is too expensive, or is too difficult to understand.
The NAC Report proposed several reforms of the civil justice system. Many of the recommendations appearing in the Report are relevant to the arbitration system. One suggested reform was to adopt court procedures that are simple and proportional. Also, the Report advised that legal problems need everyday solutions that are timely, fair, and cost-effective. The Report proposed that :
- judges make greater use of case management meetings
- parties agree on common experts
- judges limit the number of issues to be tried and the number of witnesses
- courts adopt scheduling procedures for fast track trials.
Another reform proposed was that the courts should become multi-service dispute resolution centers, providing a full range of dispute resolution services. Court annexed mediation or judicial dispute resolution should be available in all cases. In addition, the Report proposed the creation of specialized court or tribunal services, such as commercial or consumer courts.
The concept of multi-service court rooms is similar to a proposal made at the Conference in the United States (known as the Pound Conference) organized to deal with growing caseloads and access to justice. Professor Frank Sander presented a paper at the conference proposing the idea of a dispute resolution center, described as a multi-room court house, where parties would be directed to the process most appropriate for the case, such as mediation, arbitration, fact finding or court hearing.
The NAC Report was based on four working group reports. One of those reports addressed goals that are consistent with the arbitration system. The Court Processes Simplification Working Group recommended rules of court that promote just, expeditious, and inexpensive access to justice, with the objectives of reducing trial length and costs and simplifying court procedures. The report recommended that judges see themselves as problem solvers and not only as neutral adjudicators. Recommended future initiatives include: (1) making court annexed ADR mandatory, (2) promoting an inquisitorial judging style, (3) developing specialist judges, (4) increasing the use of case management, (5) increasing availability of duty judges for early and quick rulings on procedural matters, (6) increasing flexibility of hours of operation of court houses, and (7) developing simplified procedures for smaller actions.
The need to introduce principles of proportionality to civil procedure and use mechanisms to simplify court processes was endorsed recently by the Access to Justice Committee of the Canadian Bar Association.
 National Action Committee on Access to Justice in Civil and Family Matters, Access to Civil and Family Justice, a Roadmap for Change, (October, 2013), http://www.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf.
 Task Force on Systems of Civil Justice, Systems of Justice Task Force Report (Ottawa: Canadian Bar Association, 1996).
 Harold Baer Jr., “History, Process and a Role for Judges in Mediating their own Cases” (2001) 58 N.Y.U. Ann. Sury. Am. L. 131, the full name of the 1976 conference was the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice.
 Frank Sander, “Varieties of Dispute Processing” (1976) 70 F.R.D. 111 at 131.
 Action Committee on Access to Justice in Civil and Family Matters, Report of the Court Processes Simplification Working Group (May, 2012), http://www.cfcj-fcjc.org/sites/default/files/docs/2012/Report%20of%20the%20Court%20Processes%20Simplification%20Working%20Group.pdf, the report noted that there were many simplified procedures in place in the courts, for example the fast track of certain types of trials in the Newfoundland and Labrador Rules of Court.
 Equal Justice: Balancing the Scales, Canadian Bar Association Access to Justice Committee, (Ottawa: Canadian Bar Association, 2013), http://www.cba.org/CBAMediaLibrary/cba_na/images/Equal%20Justice%20-%20Microsite/PDFs/EqualJusticeFinalReport-eng.pdf.