by The Honourable Chief Justice Donald Brenner and Deputy Attorney General Allan Seckel, QC, Co-Chairs
In the December, 2004 issue of BarTalk, we announced the formation of the Civil Justice Reform Working Group, whose task is to consider how our civil (non-family) justice system can provide more affordable, effective and proportional dispute resolution.
Since the publication of that issue, the Working Group has been conducting research, meeting regularly, and actively soliciting comments from stakeholders. To date, we have received over 30 written submissions.
The Working Group has reviewed civil justice reform initiatives of jurisdictions around the globe. These initiatives generally seek to achieve early and cost-effective dispute resolution, in which the amount of process, time and cost is proportional to the magnitude and importance of the dispute. These initiatives include the following:
- encouraging pre-action dispute resolution;
- simplification of pleadings;
- matching a case to the most appropriate method of dispute resolution;
- multi-tracking and expedited proceedings;
- case management, including setting timelines and case conferences;
- court-annexed dispute resolution programs;
- reforms of motion practice;
- limits on available discovery;
- the use of joint experts and other reforms regarding experts;
- reforms of trials;
- assisting unrepresented litigants;
- encouraging alternative billing arrangements; and
- using technology to increase efficiency and improve data collection.
We have learned from what we see in B.C. and from what we have learned about the experience of other jurisdictions that justice reform has many complexities and challenges, including:
- Lawyers and judges are immersed in our present adversarial system of civil justice and tend to resist change.
- The context in which changes are developed and implemented is constantly changing.
- Every justice reform initiative has risks. For example:
- Adding steps will increase cost unless the result is an earlier resolution.
- New rules create a potential additional battlefield (and more cost) if there is an ability to argue about exceptions to the rule, etc.
- There are economic factors at play. Lawyers are only human and the behaviour of some will be swayed by economic incentives.
- The success of a justice reform initiative is highly dependent upon the context in which it is employed, the culture of the participants in the system and the manner in which it is implemented.
We also learned a great deal from the June, 2005 Restructuring Justice conference in Vancouver, especially from hearing the viewpoints of clients and receiving a first hand account of the reform initiatives in Australia from the Honourable Justice Davies, A.O. As Justice Davies stated at the conference, “Reform must maintain a balance between cost, delay, fairness and truth.”
The Working Group is continuing to explore these very important issues and expects to issue its report to the JRTF in the spring of 2006. Comments and submissions will continue to be sought from stakeholders prior to making final recommendations. Civil justice reform in B.C. is an ongoing effort and we appreciate the efforts of everyone who takes the time to provide us with input and feedback.
This article was published in the October 2005 issue of BarTalk. © 2005 The Canadian Bar Association. All rights reserved.