Now trending in Canadian mainstream media, on the ‘justice’ front, are pieces about problems with our courts, the delays of getting to trial and verdicts, the Supreme Court’s response, and the unintended consequences of letting some bad dudes go free because of the delays.
An internal Tribunal (oxymoron?) of our professional regulatory body, the Law Society determined that the Law Society acted unreasonably in the prosecution of 2 lawyers on a conflict of interest charge (exponential irony). The hearing took over 130 days spread over a 3 year period, 110 of which the tribunal said were “a waste”. Each lawyer claimed $1,800,000. from the Law Society as their legal costs which they wanted reimbursed. ($3.6 million total for the one side). The Appeal Tribunal awards each lawyer $667,500. plus interest ( $1.3 million total). Unhappy, the 2 lawyers last month sued the Law Society for an additional $22 million in damages. Stay tuned for ongoing developments. And remember, if you are an Ontario LSUC licensee, any award to be paid by the LSUC will cost you personally.
Judge Joseph Wapner, ground breaking American jurist dies at his home in Los Angeles, Feb. 2017, at the age of 97. Daytime TV enthusiasts need no introduction to Judge Wapner. He presided over the People’s Court, an early ‘reality’ TV program from 1981 to 1993. The show continues to this day. Millions of viewers regularly tune in to the show. His resonance with the American public is reflected in the award of a Star on the Hollywood Walk of Fame in 2009. Each of his more than 2000 trials was conducted and resolved in under 30 minutes.
Connecting the Dots
Lawyers, we have a problem. See Dot #1. Our court system does not function effectively. Cases take too long to resolve. And they cost way too much. The former is one cause of the latter. See Dot #2. I say a pathway to reform lies in a process that emulates Judge Wapner’s People’s Court. That is to dramatically limit the time to trial and the trial time. See Dot #3.
How This Might Work
Simple. Establish a rule that set a time limit on how long between a complaint and a court hearing. Then establish a rule for how much court time the case would take. Of course provide for exceptions in special cases with out of the ordinary circumstances. As a starting point for the discussion, consider 100 days from complaint to court, and one day in court.
But is it Justice?
Ahhh, now there’s a legit question. I sense the debate may be vigorous, with compelling arguments on each side.
The naysayers will argue that these time limits can not possibly bring justice to the participants, and that there ought not to be time limits for getting to justice. These folks ought to speak to the 2 lawyers who waited over 10 years, and spent over $3 million dollars, to successfully defend themselves against a conflict of interest charge. Or better yet, ask the public TV viewers who watched Judge Wapner deal with his cases in a half hour.
The scholarly reader might inquire if there is any precedent for a strictly limited approach to judicial resolution of disputes. Here’s one that’s close to home. Psychiatric patients sometimes challenge a physician’s determination that they must be confined against their will to a mental health institution. For patients, it is akin to being in jail on the say so of a single doctor. A provincial tribunal exists to deal with these disputes, the Consent and Capacity Board.
If you can believe it, the corresponding legislation requires that from the time the patient files a complaint or challenge to the commencement of the tribunal hearing can not exceed 7 days, absent consent of all parties. As to hearing length, the Board’s policy is that absent special considerations, 2 hours will be set aside for the hearing of the case. And just to close the loop, a decision must be rendered within 24 hours of the close of the hearing, and written reasons, if requested must be produced within 4 business days of the request.
We all want justice. Designing a judicial resolution system to get there is the tough part. The framers of Ontario’s civil procedure rules were on a good path when they introduced a rule in the ‘80s dealing with the interpretation of the Rules of Civil Procedure. They said all rules should be interpreted “ to secure the just, most expeditious and least expensive determination pf every civil proceeding on its merits”. Amen.
No system of dispute resolution will provide perfect justice, however you may describe ‘perfect’. What is becoming clearer these days is that when it takes years to get to the courtroom, and when the court process can take years to conclude, justice is not well served. Time limits, even if somewhat arbitrary, can address this concern. Judge Wapner’s 30 minute trials might be a bit extreme, but the concept is well worth a new look.