Access to justice

In the Globe's web comment, R. Roy McMurtry discusses issues of access to justice:

The challenges related to access to justice, however, go well beyond the problems faced by the poor. In fact, the current high cost of civil litigation is increasingly preventing almost all but the very affluent from pursuing a legal remedy through a trial.

I am hearing more and more frequently about the phenomenon of the so-called "disappearing civil trial." Disappearing because of the often huge cost of a trial. As a result, highly experienced civil litigation counsel may become an endangered species with the dramatic decline of the number of civil trials. This represents, of course, a serious access-to-justice issue and civil justice reform must remain a high priority for the legal profession throughout Canada.

In the criminal justice system in Canada, persons charged with serious criminal offences who cannot afford a lawyer are provided legal representation through legal aid plans. However, the financial resources available to these plans are not sufficient to provide the same assistance in civil law cases except to a certain extent in family law disputes. Indeed, the financial eligibility criteria restricts legal aid assistance to those who are below or close to the poverty line. The result has been and continues to be an increasing number of unrepresented litigants in both civil and criminal trials.

It's amazing to me that for all the time that gets put into determining what the law ought to be, there seems to be little will to ensure that the law can then be enforced by its subjects and beneficiaries. While McMurtry rightly notes the lack of funding in existing Legal Aid programs as well, the Charter right to counsel to defend an individual against the charges of the state seems to stand in stark contrast against the lack of resources to allow individuals to prosecute or defend claims against anybody else.

McMurtry suggests pro bono work as one solution, but that seems likely to end up far too limited in scope. Instead, I'd suggest that Legal Aid programs be expanded to ensure adequate representation in all matters. That could mean having Legal Aid simply hire more staff, or it could result in firms making themselves available through a regular retainer with Legal Aid funding to fill the added scope. More likely it would involve both of the above, given Legal Aid's lack of resources to even fill its current role.

What's worse as things stand now, a successful court process doesn't really restore the party to his or her original position. Even when a party is entirely right in law, the current costs system doesn't usually provide for full financial recovery in the enforcement of one's rights, to say nothing of the cost in time and effort in going through the litigation process.

It would seem a simple enough change to provide for solicitor/client costs (i.e. the amount typically expended to hire a lawyer reasonably suited to the case) as a standard rather than party/party costs (which are an arbitrary and artificially low estimate of actual costs) so as to ensure that a fully successful party doesn't lose out even while winning in court. That should make one's chance of success a stronger motivator in settlement discussions, rather than making the cost of trial the strongest motivating factor even for a party who justly expects to be successful.

I can sympathize with a desire to encourage settlement and avoid litigation where possible, which are obviously primary goals of the current system. But litigation should be avoided based on positive reasons to pursue other options, not on a process that prices itself outside the range of most and then punishes people who seek to enforce their rights. As it stands, efficiency within the legal system seems to be a higher priority than the rule of law itself.