Friday, 27 July 2012

For Ismailis, legal justice is non-adversarial

In a recent blog posting (July 16) I argued that there are many kinds of legal disputes where courts ought to be seen as a “valued, but last forum.”  This is not, in my view, just because courts are complex, slow, expensive and inefficient institutions, but because some legal disputes are better resolved by other means.

My view is that it is past time for us to refer to these other pathways to legal justice as “alternate” dispute resolution; rather, they need to be seen as belonging, with the courts, in the mainstream.  I say this not to undermine the courts as fundamental institutions, but rather to enlarge and enrich our conception of legal justice to embrace a broader set of processes and institutions.

Such processes and institutions already exist.  Arbitration is the preferred dispute resolution mechanism for almost all transnational commercial litigation. ( It is interesting that while judges are quick to remind us of the importance of adjudicative independence in our justice system, litigants in commercial disputes would prefer to choose and pay their own adjudicators, and yet  arbitration is nothing if not a form of rent-a-judge, to put it crudely.)  Mediation is increasingly preferred for relationship-based disputes, where there is an issue that needs to be resolved, but the parties will have to continue to work or live with each afterwards.  Other examples could be given.

In this regard, I was recently provided with a copy of a remarkable witness statement filed in a proceeding in the Supreme Court of the United Kingdom.  The witness is Noordin Nanji, of Vancouver.  He makes the statement on behalf of His Highness Prince Aga Khan Shia Imami Ismaili International Conciliation and Arbitration Board (“ICAB”), of which he is Chairman.  The statement explains that ICAB is “part of a global institutional framework that provides a dispute resolution system for members of the Shia Imami Ismaili Muslim community”, usually referred to as the “Ismailis”, on a national and international level.

The ICAB System seeks to encourage the amicable resolution of conflict through impartial mediation, conciliation and arbitration on a voluntary basis, i.e. the parties must be willing to seek an amicable resolution of their dispute.  While the dispute resolution process followed by the CAB System respects the religious principles and values of the community, it is always within the confines of the applicable local law.

Here follow some extracts from the witness statement to illustrate the focus on non-adversarial dispute resolution.  I do not offer these because I think our legal system should adopt Ismaili dispute resolution processes, but simply to illustrate that the adversarial system is not universally regarded as the best way to solve legal disputes.

3.2          The 1986 [Ismaili] Constitution established a dispute resolution system whereby Conciliation and Arbitration Boards would operate at both the national and international level. The system operates in 17 jurisdictions around the world. In some countries, notably India and Kenya, the decisions of such Boards, particularly in matrimonial and personal law matters, though reviewable by the courts, are recognised by the law.

3.7          The primary objective of the CAB System is to assist Ismailis to resolve disputes in an equitable, speedy, confidential, cost effective, amicable and constructive manner and in an environment that is culturally sensitive.  Processes are designed to operate in an equitable manner. Moreover, the Boards, whether arbitrating or mediating, are required to operate in accordance with applicable local laws. In arbitrating any dispute, a panel appointed by one of the Boards will apply the national laws applicable to the relevant dispute, not any "religious" law.

5.2          Once a dispute arises, it is the practice of the Boards first to attempt to resolve any dispute by way of mediation or conciliation rather than arbitration, even in cases where the parties have referred to arbitration only in their agreement. Rules of Conciliation have been adopted formally by the Boards for disputes resolved by way of conciliation.

5.5          The experience of the Boards is that more than 99% of disputes referred to the Boards are dealt with by way of mediation or conciliation. It is only a handful of cases that are dealt with by way of arbitration.

5.6            It is strongly felt  within  the community  that  one  of  the  reasons for  this  high incidence of mediation and conciliation is the fact that the parties, and indeed the members  of   the   community,  have  confidence  that   their  rights   will  not   be compromised and  that  a  fair  and  equitable  resolution  of  their  dispute  will  be achieved through mediation or conciliation by the Boards.

6.6            Muslim ethics, custom and practice strongly encourage the amicable settlement of disputes that may arise in the community between believers. It is recommended that, when a conflict arises between members in the community, attempts should be made to find a peaceful solution either through mediation or impartial conciliation or arbitration between willing parties. Voluntary and impartial conciliation and arbitration for the amicable resolution of disputes is a deeply embedded practice in the Ismaili community going back 14 centuries ... It is from that long tradition that the present CAB System has emerged.

6.8          In essence,  it  is  believed  in the  Ismaili community, as in  the  broader  Muslim community, that when a problem occurs between brothers, the people around should intervene to solve it, and they should pursue all means in order to make peace between them. That brothers in religion should be willing to forgive each other and to reconcile their disagreements is testified to in a large number of Prophetic traditions, both the Sunni and the Shia, as  well as in the traditions of  the Shia Imams. For instance, Imam Ali, the first Shia Imam, has said:

"Do not separate yourself from  your brother unless you have exhausted every approach in trying to put things right with him. ...  Do not be harsh with your brother out of suspicion, and do not separate from him without first having tried to reason with him... Seek reconciliation with your brother, even if he throws dust at you." (The Sayings and Wisdom of Hazrat Ali, published in England, 1994)

6.12        In sum, therefore, the broader Muslim tradition, and specifically the Shia Ismaili Muslim tradition, defines and fosters an ethos for amicable dispute resolution that, unlike the "secular" litigation culture, is non-adversarial. The notion of the winner and the vanquished, where the winner may take all, is completely alien to the teachings of the Ismaili Imams.

Justice for sale? Market values and the law

In the concluding passages of his reasons for judgment in Vilardell v.Dunham, the court hearing fees case, BC Supreme Court Justice McEwan calls in aid the American political philosopher Michael Sandel to argue that:

“the Court cannot perform its necessary function if it, like so much else, is subject to the values of the marketplace…Some  things cannot be for sale.”

 I confess I have not yet read Professor Sandel’s latest book (What Money Can’t Buy, the Moral Limits of Markets) though I have read the article in the April 2012 issue of The Atlantic which distills the book, and contains this wonderful passage:

“The great missing debate in contemporary politics is about the role and reach of markets. Do we want a market economy, or a market society? What role should markets play in public life and personal relations? How can we decide which goods should be bought and sold, and which should be governed by nonmarket values? Where should money’s writ not run?”

I particularly like that sentence “where should money’s writ not run?”  It’s an invitation to explore an aspect of our legal system that I think needs more discussion.

Here are three examples of harm:

-          An arm broken in a car crash caused by a driver’s negligence

-          A reputation injured by the false statements of another

-          An employment terminated maliciously.

What do all three of these harms have in common?  Two things.  First, they are not, in themselves, economic harms.  Second, courts have monetized them. 

The pain and suffering of a broken arm is just that – debilitating, disabling hurt.  The loss of respect and self-esteem that follows an unjustified attack on someone’s reputation injures our dignity and sense of self-worth – it’s just harder to hold your head high when folks are publishing lies about you.  And while the loss of employment income is obviously about money, the affront that occurs when someone is fired not simply without cause, but in a manner that is intended to belittle and scorn can be deeply and enduringly stressful and traumatic.

None of this is about money, though.  It’s about other precious components of our quality of life.

But these harms have all been recognized by the courts as a basis for claiming money damages, when they are caused by a breach of legal rights.   Damages for negligence, damages for defamation, and aggravated and exemplary damages for wrongful dismissal.

I have chosen these examples deliberately because they all come from what lawyers call the common law – that is, the law made by judges.  The right to compensation for physical pain and suffering or injury to reputation, and the right to additional aggravated or exemplary damages in certain cases were not established by legislatures, or governments. They were created by courts. 

I agree with Michael Sandel when we calls us to broaden the terms of our public discourse and grapple more explicitly with competing notions of the good life. I also agree with Justice McEwan that some things cannot (or ought not to) be for sale.  But let’s be careful when we dress the courts and the law in that high-minded notion.  Because one thing the courts have done for hundreds of years is to apply and extend the values of the marketplace into the law.

Oddly enough, I’m not saying this just to hint at a latent hypocrisy in the reasoning of Justice McEwan, although his complaint about the government “selling justice” by imposing court fees is a bit hard to take, given what courts do everyday in putting a dollar figure on anguish.  I actually think it would be interesting to challenge the notion that money is the best – or even an appropriate - form of solace for the harms I have described.  Courts themselves acknowledge that money does not fully repair the hurt of non-economic harms.  But damages for these harms are awarded because… well, just because a poor substitute is better than nothing.

Of course, lawyers have a direct interest in ensuring that this practice continues, because their fees are paid from damage awards.  But although I admit I have never exhaustively researched the point, I have never seen any empirical research into how and in what way money for these kinds of harms actually makes anyone or anything any better.  This is a heretical notion to be sure, in particular given (for example)  the enormity of the on-going project of compensating Indian residential school survivors for their continuing pain and dislocation.  Psychological and economic research tells us that, above a certain threshold, more money does not buy happiness. Perhaps pain and suffering should not be for sale?  What if we were to start thinking more seriously about other forms of redress for non-economic harms?  Where should money’s writ not run?

Monday, 23 July 2012

The vote split risk - Peter Brown's analysis

Readers of this blog will know that I am concerned about the potential impact of a centre-right, or free enterprise vote split on the outcome of next May's general election. A couple of weeks ago Peter Brown, founder of Canaccord Capital, and one of the province's business leaders, wrote a letter to the BC Conservative Party's executive council on the subject.  The letter received a fair bit of media coverage, but the accounts I saw (naturally) reproduced extracts only.  I was curious to see the whole document, and Mr. Brown very kindly agreed to provide it to me, and has allowed me to print it in full.  As might be expected, given the author's half a century of experience working in capital markets, it's a careful analysis of the fiscal challenges faced by governments here and abroad.  He's not optimistic about the economic world that lies ahead.  He's also not shy about what, in his view, needs to happen in B.C. if we want to maximize our political chances of navigating the continuing stormy seas of economic uncertainty.  Here's the letter, all of it:

I have been in the investment business for over fifty years and founded Canaccord Financial, Canada’s largest independent investment dealer forty-four years ago.  In addition, I serve on the Economic Advisory Council to the Federal Government, Chair the Fraser Institute am Vice Chair of the Investment Industry Association of Canada as well as sit on the Board of Governors for the Business Council of British Columbia.  This variety of experiences gives me an exposure to the global, geopolitical and economic forces that are currently at play and they cause me to agree with the Governor of the Bank of England when he said in October, 2011 that “The world is facing the worst financial crisis since at least the 1930’s if not ever.  I believe it is generally true that there are more problems in more places with less leadership than anytime in my lifetime. 

The purpose of this letter is to suggest that we are in a very troubled global economic condition that is more serious and likely to be longer in duration than the normal relatively short term post war recessions and that will, in my opinion, impact on global growth, investment and job creation for some time to come.  It is a time that responsible British Columbians need to get past their partisan beliefs to hopefully ensure that our politics don’t add another level of uncertainty in an uncertain and economically dangerous world.

The media focus is rightly on the European Union which represents more than 25% of world GDP and 30% of consumption – about twice as large as China.  Currently about half of the 17 European countries are in recession, the average unemployment rate is 11% and the GDP has fallen 0.4% from 2007 through 2012.  Issues include sovereign debt crises, banking crises and a great deal of social instability, but Europe, while significant, is only part of the problem.

Developed world growth forecast for 2012 is 1.4% down from 3.2% in 2010 and the emerging economies will grow at a rate of 5.7% down from 7.5% in 2010.  The US GDP is projected to grow less than 2% which will be the worst recovery of all post World War II recessions.  The Canadian government has projected a 2.1% GDP growth which is weakening.  Japan in the same 2007 – 2011 period suffered a decline in GDP of 3.5% aggravated by a natural disaster and now China is experiencing weaker growth as its manufacturing activity is slipping along with that of the U.S.

Many parts of the developed world have been on a borrowing binge to maintain unsustainable entitlements that now require the pain of deleveraging and austerity.  This is accompanied with the unfortunate demographics of aging populations who tend to consume more government services as they live longer and, out of necessity, hold on to their jobs.  The receding economies will cause relatively high unemployment over the intermediate term and unfair and unsustainable youth unemployment.

It would appear that a substantial issue going forward will be intergenerational fairness where we could pass to the next generation an economic opportunity that is substantially diminished from the one we inherited.  I could develop the case that the next generation will have lower incomes, higher taxes, less services, higher rates of youth unemployment, significantly larger amounts of per capita government debt, higher cost of secondary education and lower pensions.  The signs are there for the potential of higher levels of social unrest among the connected youth that rightly feel disadvantaged by their predecessors. 

There are so many other problems in so many parts of the world, with the potential to generate other crises and a steady stream of negative news going forward – for example: the instability of the Middle East, several important elections in the developed world, including the unfortunate socialist electoral results in France, the behavior of the casinos on Wall Street that have lost sight of the purpose of capital markets and risk management and the potential expiry of the Bush tax cuts which could impact the US economy by over 3% of the GDP.  There are already forty-eight million Americans now collecting food stamps while social security and healthcare programs are massively underfunded and therefore uncertain.

There is a current smugness amongst Canadians who have come to believe that our banks and economic management are somehow superior – but the truth is, while we may be the tallest of the pygmies, we are in the process of building our own debt and fiscal crises in spite of more responsible federal fiscal management. 

  • The truth is the federal debt will grow from $457 billion in 2007 to $671 billion by 2016 as federal debt, as a percentage of GDP, has risen from 29% to close to 35%.
  • Provincial debt will rise from $319 billion in 2007 to approximately $600 billion in 2016 with Ontario’s provincial debt, in the same period, increasing by over $150 billion as it doubles from $156 billion to $310 billion.  Tragically Ontario’s financial condition impacts on the rest of Canada as it represents 46% of the Canadian economy.
  • Program spending is up 60% in a decade from $130 billion and will reach $268 billion by 2016.

And that is not all . . . in the current year the combined federal and provincial deficits will be $41 billion which is shared equally between them but the provinces are faced with a greater problem as healthcare costs on average are going through 50% of the provincial budgets with the baby boomers not yet at their peak healthcare spending.  In addition, our personal debt levels average at 150% of annual income, higher than both the U.S. and U.K., with B.C. being the highest in Canada.

Clearly Canada’s fiscal regime is unsustainable and needs to be addressed particularly at the provincial level which will require diligent fiscal management. 

Scott Baker of Stanford University recently commented on the U.S. economy.  “Current levels of economic policy uncertainty are at extremely

 elevated levels compared to recent history.”

“We find that an increase in economic policy uncertainty...

foreshadows a decline in economic growth and employment.”

The American economy is receding as the rules are unclear and investors are facing too many uncertainties such as future tax policy, the cost of Obamacare, the impact of deficits and entitlements and unfunded programs and liabilities with many states and municipalities near bankruptcy.  These uncertainties are compounding the unstable economic conditions with the result that the American economy is again drifting towards recession following an extremely weak recovery in spite of their unprecedented massive stimulus and many other governments in the developed world as well as China.

In B.C. investment decisions are starting to be deferred for fear that the change to a left of centre government would create similar uncertainties in respect to a very similar list of issues that is proving to be so detrimental to the U.S. economy.  If the NDP were elected it would most likely be a two term government and the investors remember all too well the lost decade of the 90’s when our province was ranked 9th in Canada for economic growth.  We all know that there is a direct link between investment and employment, particularly employment for our youth and we also need to consider the fact that all or part of the $35 billion of capital projects that are in various stages of planning in Northern B.C. could well be jeopardized.  

It is clear to me that in this uncertain world and with these economic conditions, we all ought to put petty partisan issues behind us to ensure we elect a stable free enterprise government.  It is not the time for B.C. to take the risk of another failed experiment with the left by letting them back into power by way of a split of the centre right vote. 

It should be obvious that it is very important to keep the free enterprise forces in B.C. aligned under one political umbrella going into the next election as political fragmentation, in my view, will serve to aggravate the negative business community and investor reaction to a possible NDP win in 2013.  Fragmentation of the centre-right will cause many people in the business world to attach a higher likelihood to the prospect that the NDP can last for more than a single term.  It is critical that those on the centre-right remain committed, coherent and robust and that those who contribute to fragmentation of the centre right vote come to realize that they are an unintended political ally of the left.  In the world we live in today fragmentation on the right could be a disastrous scenario for our province and its economic opportunities.

The studies of the Fraser Institute show there is a measurable, positive correlation between free market approaches to public policy and certain outcomes that are economically and socially desirable.  We owe the next generation the opportunities and jobs that can only be developed in a free enterprise environment.

Wednesday, 18 July 2012

A clever way of looking at the United States economic condition

This from an occasional reader.  Puts everything into perspective.  Too cute?  Or just very clever. 

* U.S. Tax revenue: $2,170,000,000,000
* Fed budget: $3,820,000,000,000
* New debt: $ 1,650,000,000,000
* National debt: $14,271,000,000,000
* Recent budget cuts: $ 38,500,000,000

Let's now remove 8 zeros and pretend it's a household budget:
* Annual family income: $21,700
* Money the family spent: $38,200
* New debt on the credit card: $16,500
* Outstanding balance on the credit card: $142,710
* Total budget cuts: $385

Interestingly, I just found a web site that calls itself the U.S. National Debt Clock, and it says that outstanding public debt of the United States as of July 19 is $15.9 trillion, even larger than the number reported above. Well, well.

Monday, 16 July 2012

Access to the courts and the constitution: a few comments on Vilardell v. Dunham


It started as a custody battle, a fight between a mother and a father over where to raise their five-year old child.  But Vilardell v. Dunham, 2012 BCSC 748 will be remembered as the court hearing fees case.  It holds that government cannot exercise its constitutional power over the administration of justice to pass laws that have the effect of directly inhibiting access to the courts.  Court hearing fees, charged by government to help offset the cost of operating the court system, are a barrier to access to justice, and are therefore unlawful. 

The reasons are 178 pages.  They took Justice McEwan of the BC Supreme Court two years to write.  The decision has already been appealed. For the time being, the collection of hearing fees has been suspended and, as one might expect, a lawyer has already started a class action lawsuit to seek recovery of the millions of dollars that have - if this decision is upheld - been wrongly collected over the years.

Justice McEwan’s decision is obviously the product of long and deep thought about the role of courts in our democracy, and the importance to our system of government of access to justice.  It is nothing like a typical trial judgment, where a judge finds the facts and then applies the established law to decide the outcome.  In this case, there was no straightforward legal rule preventing governments from charging hearing fees in civil litigation.  In fact, fees have always been charged to litigants in BC courts, and the tradition of charging fees dates back in English legal history (the source of our common law) to the 13th century.  To answer this history, the judge proceeds by analogy, from what he calls “relatively sparse” constitutional and legislative texts.  He reasons that judges and courts have long been law-makers, not just law interpreters, and that adjudication in court is an aspect of “the fundamental constitutional principle of democracy.” In the end he decides there is support in the Constitution, both in its text and in its underlying principles, for his conclusion (at para. 386) that “the government of British Columbia cannot pass laws that directly inhibit access to the courts.”

The result has been widely cheered by those who see it as a victory for access to justice.

In some respects it is a case study of the old legal maxim that “hard cases make bad law.”  Government’s arguments in support of its right to charge hearing fees clearly angered the judge.  Near the end of his reasons he expresses his “serious concern that the Attorney General has come to this Court with a submission that appears so dismissive of [the] fundamental aspects of our system of government.” (para. 426)

But the question ultimately is not whether the Attorney General had a good argument, but whether as a matter of the basic law of our nation, government is prevented from charging hearing fees to litigants in civil cases in the superior courts.  Put another way, it is not whether, as a matter of policy, government ought to charge hearing fees, but rather whether, as a matter of law, it has the authority to do so. 

What follows does not pretend to be a comprehensive analysis.  It’s just a blog posting.  At the heart of the judge’s decision is a reasoned view about the importance of courts to democracy that warrants serious scrutiny.  I think that the decision is “a bridge too far”; it overreaches in its conception of the limits on the power of government to discharge its constitutional responsibilities in respect of the administration of justice.  But whether I am right or wrong about that, the judgment deserves to be read.  At the very least, it may be the only judicial decision in Canada this year where you will read extracts from US political philosophers (such as Michael Sandel’s new book What Money Can’t Buy: The Moral Limits of Markets), alongside the Magna Carta, passages from British legal histories, legal aid reports done for the Canadian Bar Association, and justice reform studies.

The facts and the fees

The parties to the case were parents of a five-year old daughter.  The mother wished to live in Spain, while the defendant wished to live in British Columbia. They were never married, but regarded themselves as separated. As the trial judge held, “They communicate by e-mail. The situation is untenable, and the essential question is whether the plaintiff may leave British Columbia to live elsewhere with her daughter.”  They were living on the father’s income as a UBC instructor, where he made about $74,000 per year.

There was also an issue about interests in a home registered solely in the name of the father, but lived in by both parents.

The parties were not represented by lawyers at the trial, which took ten days.  At the time of the trial, the hearing fees charged by government for civil trials in BC Supreme Court followed a sliding scale in which the rate per day increased with the length of trial.  The hearing fees for the ten day trial amounted to $3600. This did not include additional amounts that would have been paid for filing fees.

It is possible for litigants to apply to be relieved from the obligation to pay fees on the basis of indigency.  Although eventually there was such an application in this case, the decision turned on the question of principle, namely whether, even with a recognized indigency exception, the requirement to pay fees infringes the right of access to justice guaranteed under the Constitution.

The decision

The legal analysis is extensive, to say the least.  Arguments were made by the Attorney General, the Canadian Bar Association, and the Trial Lawyers Association of BC.  It is important to point out that the starting point for the inquiry was a Nova Scotia case called Pleau (1998), 443 C.P.C, 4th 201, where the court held that reasonable fees for services in initiating and continuing litigation were valid as long as they were not so high as to “impede, impair or hinder” access to the courts, but that certain proposed hearing and jury fees were unconstitutional.  The court held that even a modest hearing fee would be unacceptable because its effect would be to put a “price on accessing the courts,” that is, a price on justice.   A subsequent Ontario case called Polewsky (2003), 229 DLR (4th) expressed a more restrictive view, but as far as Justice McEwan was concerned, these and other cases made it necessary to consider the constitutionality of hearing fees in B.C.

Justice McEwan’s decision is founded in large part on an extensive analysis of what courts call the “unwritten” principles of our constitution.  These are the foundational, underlying principles that are invoked to help interpret the constitution’s written provisions.  In a very few cases, these principles have also been relied upon as sources of substantive law.  The principles include federalism, democracy, constitutionalism and the rule of law, and respect for minority rights. 

Justice McEwan holds that adjudication in court is an aspect of the fundamental constitutional principle of democracy.   In his view, just as “it is beyond the competence of either legislative body to pass laws that inhibit the free right of discussion or debate essential to democratic governance,” so, too, the activity of the courts is a core function of democracy, and courts “cannot fulfill that function in a democratic state if they are not a forum to which all individuals may turn for the determination or enforcement or elaboration of their rights.” 

He poses (at para. 354) the question whether the provincial jurisdiction under s. 92(14) of the Constitution Act, 1867 to legislate “in relation to the administration of justice in the province, including the constitution, maintenance and organization of provincial courts… and including procedure in civil matters in those courts,” includes the right to legislate fees “of any nature in any amount,” or whether there are limitations on this authority. In his view there are such limits.  The right to access to the courts, he says, must “stand outside and beyond the competence of either Parliament or the legislature to inhibit or abrogate.” 

The provincial authority under s. 92(14) is therefore, according to the judge, a fundamental obligation to maintain the courts at a level adequate to their constitutional purpose, not the authority to inhibit it. 

He concludes that “the government of British Columbia cannot pass laws that directly inhibit access to the courts.”

This was not a Charter case

Although the Charter of Rights and Freedoms was argued, the judge did not rely on it.  One reason why this is important is that in Charter cases, the usual framework of analysis is first to decide whether the governmental action breaches a specific Charter right, and then to consider whether the breach can be “saved” by a section 1 analysis, in which the question whether the breach can be “demonstrably justified in a free and democratic society” must be considered.   This is a balancing exercise, in which Charter values are weighed against other imperatives.

That balancing exercise is not required where, as here, the fundamental question is the meaning of a division of powers provision, namely s. 92(14). 

As a result, the decision here is all or nothing.  The court does not hold that the hearing fees are too high.   On the court’s reasoning, hearing fees at any amount are impermissible. 

There is a great deal of evidence and discussion about fee levels, and whether the fees charged cover some or all of the cost of operating the court system.  This appears to have been invited by some passages in previous access to justice cases where courts have suggested that the question whether a potential impediment to justice – say, for example, the tax on legal services – limited access to justice was a fact to be proven on evidence.  But the court in this case ultimately does not need this evidence.  In Justice McEwan’s view hearing fees are impermissible as a matter of principle, because they purport to limit access, whether or not they actually have that effect.

The judgment hangs by a narrow thread

The modern history of “access to justice” as an enforceable legal principle starts with a BC case that arose out of the BCGEU blockade of the Vancouver Law Courts in November 1983.  The Supreme Court of Canada held in that case [1988] 2 SCR 214 that the principle of access to justice – specifically of access to the courts – could support an injunction granted by the BC Supreme Court on its own motion to stop the picketing.  There, “access to justice” meant, literally and physically, the right of a citizen to enter a court. 

The principle has been discussed and applied in later cases.  In this case Justice McEwan relies extensively on the reasons for judgment of Madam Justice Newbury of the BC Court of Appeal in a case called Christie, 2005 BCCA 631.  Justice Newbury wrote for the majority in a 3:2 split decision holding that the 7% provincial sales tax on legal services (this was pre-HST) was unlawful because it violated what she called the “fundamental constitutional right to access to justice”. 

In 2007 the Supreme Court of Canada unanimously overturned the BC Court of Appeal’s decision (2007 SCC 21) and upheld the constitutionality of the 7% tax.  It is difficult to read the Supreme Court’s decision as anything other than a rejection of the majority decision - and the reasoning - of the Court of Appeal.  As the Supreme Court of Canada wrote (at para. 17):

The legislature has the power to pass laws in relation to the administration of justice in the province under s. 92(14) of the Constitution Act, 1867. This implies the power of the province to impose at least some conditions on how and when people have a right to access the courts.

This is a very clear statement that the province has the power to impose “at least some conditions” on the right of access to the courts.  As we have seen, Justice McEwan holds that any “material infringement” (para. 378) on access to the courts lies outside provincial competence, which, put another way, is the same as saying there can be no conditions on the right of access.  I suggest it is difficult, if not impossible, to square that circle.  It appears to me that Justice McEwan, rather than follow Christie, as he is required to do, has turned the decision on its head, but that is a question that the BC Court of Appeal (and perhaps ultimately the Supreme Court of Canada) will have to decide when it hears Vilardell.

How broad is the principle of enforceable access to justice?

The heart of the judgment is paragraph 386, where the judge states the governing legal principle in these terms:

I conclude therefore, that the government of British Columbia cannot pass laws that directly inhibit access to the courts. 

The judge then applies this principle to what he describes as the specific question “whether the hearing fees charged by the government constitute such a form of inhibition or interference with access.” We know his answer to that question.

This principle is very clear, but it is also very broad.  How might it be applied to other situations?  Here are three examples:

1.      Could government close a courthouse? 

It is certainly arguable that closing a courthouse directly inhibits access to justice at least for the residents of the community served by that courthouse.  Would this statement of principle prevent government from closing a courthouse even in circumstances where the courthouse was being used only a dozen or so days a year for hearings?  I note that the principle does not acknowledge that some limits might be acceptable; there is no balancing mechanism; the government simply cannot pass laws which directly inhibit access to the courts.  Perhaps it could be said that a budget decision to close a courthouse is not a “law” within the meaning of the principle?  I doubt it.  The focus of the principle is not on government’s legislative authority but its general powers, and as we have seen the court’s view is that government’s constitutional authority requires it to maintain, not inhibit, access to the courts.


2.      What about the myriad of legislation in which government prescribes mechanisms other than courts for the enforcement of legal rights? 

For example, the question whether someone is a worker lies within the exclusive jurisdiction of the Workers Compensation Board.  The right to bargain collectively is enforced by the Labour Relations Board.  Residential tenancy issues are decided by arbitrators.  A process enacted by the legislature this past spring creates a new dispute resolution mechanism for strata property disputes.

In all these contexts, legal disputes arise, and yet the parties to those disputes cannot take them directly to the courts.   The decisions of these tribunals and agencies can, in some limited circumstances be judicially reviewed.  But there is no doubt that the legislature has, by law, directly inhibited access to the courts for the purpose of adjudicating legal disputes.

3.       Does government have the power to decide how many provincial court judges to appoint?

The Provincial Court Act says that the provincial Cabinet may appoint as many judges as the Cabinet “considers necessary”.  If that number – through retirement or other attrition – fell too low, could the court compel the government to appoint more judges in order not to inhibit access to justice?

What all these examples have in common is that government has been routinely making these decisions throughout our history.  And yet, the province has also been charging court hearing fees throughout our history.  If indeed the province’s authority under section 92(14) of the 1867 Constitution is not a power to administer justice, but rather, as Justice McEwan holds, an obligation to maintain access to the courts, are there not a host of potential legal challenges now available?

Courts as a forum of last resort

As we have seen, Justice McEwan holds that the activity of the courts is “a core function of democracy.” In his words, “courts cannot fulfill that function in a democratic state if they are not a forum to which all individuals may turn for the determination or enforcement or elaboration of their rights.”

This approach to the role of the courts, which sees a courtroom as a place where democracy is made, colours the judge’s views with respect to other forms of dispute resolution.  He is particularly unhappy with the evident desire of government to encourage other forms of dispute resolution and to see the courts as the forum of “valued, but last resort.”  He quotes with evident disapproval from a presentation of government’s model of the justice system.  Here is the passage:

[314]     These notions are explicit in the model recently developed by Court Services in British Columbia, which is packaged as a power point and shown to court staff throughout the province:

The justice system can be viewed as a funnel with a large number of rights-based civil, commercial and family disputes at the top of the funnel. These disputes need access to the system because the parties cannot resolve these disputes without help and the cost, delays and complexity associated with traditional litigation processes represent a significant barrier within BC’s justice system. However, because the court is the most expensive option for both parties and the province, MAG’s [Ministry of the Attorney General’s] strategy for the last 15 years has been to make the courtroom a valued but last resort by means of the following policies:

a)    To prevent disputes from arising wherever possible;

b)    When they do arise, to start managing them as early as possible (because the more time passes the more the entrenchment of the parties and the procedural complexity of the process grows);

c)     To provide assistance to parties in forms ranging from self help centers to advice and settlement services;

d)    To divert as many cases as possible to informal, less expensive out-of-court resolution processes like mediation in the private sector;

e)    Where cases cannot be diverted from the court process, to divert parties to informal judicial settlement conferences and judicial mediation;

f)     To expedite cases destined for trial and minimize their draw on resources through active case management and by streamlining litigation procedures.

[Emphasis added by the trial judge.]

[315]     It is obvious that, in context, the present regime of hearing fees is part of a larger, more significant shift in the way the courts are viewed by the branch of government that is obliged to finance them. Support for the civil courts is not seen as a cost of good government but as a discretionary expense to be minimized, amateurized (no legal aid), or privatized, wherever possible. This raises a serious question about whether our constitutional arrangements are so ill-defined that the role of the judiciary is contingent on the role the other branches imagine for it.

There is a serious question here about the role of the courts which is distorted by the judge’s failure to explain the government’s view either correctly or fairly.  The judge ignores government’s concern for the cost of litigation to litigants and focuses only on government’s desire to reduce its own expenditures.  The judge repeats this error on several occasions in the latter part of his reasons (see, for example, paragraphs 398 and 410.).  It is as though government’s concern for cost is somehow illegitimate or tawdry.  The judge here falls victim to the classic error of drawing a bright line distinction between between government and the citizens who pay for it.  According to this view, it’s government that is paying, not us. (The judge’s perspective on this issue is made even clearer in his discussion about whether courts are a “service” or “arm” of government, as though that distinction should immunize from scrutiny an expenditure of public resources on the basis that it is one category of expenditure rather than another.) 

Perhaps more importantly, the judge apparently sees the Court Services Branch “ladder” as motivated entirely by expenditure considerations, intended to ration access to the courts, whereas I would argue that the ladder recognizes some more profound truths, namely that encouraging people to take ownership for and solve their own problems, managing disputes so as to contain rather than enlarge them, looking for pathways to limit the issues that truly need to be litigated, and more, are all actually much better ways of dealing with most legal disputes than a court trial.  What we know about court processes is this: they are slow, complicated and expensive, emotionally stressful, and fraught with uncertainty.  Our system of adjudication is founded on the adversarial model of dispute resolution, which is essentially a form of civilized warfare by word, and while it is a system of long lineage, its attributes are increasingly being challenged by those who believe, for good reason, that there are many better ways of achieving justice other than by a courtroom trial. 

The ladder of options which the judge finds so distasteful is not an attempt to limit access to the courts, but rather to recognize that while courts are necessary, courts are not necessarily the best tool in all cases for legal dispute resolution.  The idea of courts as a “valued but last resort” does not strike me as undermining the important role that courts can play in democracy, but simply recognizes that there are limits to that role.

Courts should not be immune from efficiency considerations.

The judge is particularly upset by a government submission about the rationale for hearing fees.  Government said this: (para. 309)

The primary purpose [of the increase in the fee as the number of trial days increase] is evident on the face of the enactment. Construing the enactment, it is to provide an incentive for efficient use of court time and a disincentive for lengthy and inefficient trials.

The judge describes this as “rationing court time.”  This is not, in fact, what the government was saying.  The number of court hours is already limited - there are only so many judges, so many courtrooms, and so many hours available for court hearing.  The fees don’t change that; rather the fees are aimed at the litigants, and are intended to incent litigants to use as little of that court time as is necessary.

The judge commits the same error in the very next paragraph when he says (at para. 310) that government “assumes the right to influence the availability of the court by manipulating fees.”  Again, hearing fees have no relationship to the availability of the court.  The court will be there, with or without the fees.  The question is whether litigants will choose to use the courts, and that is what the fees are aimed at.

But what really troubles the judge about these submissions is the suggestion that court efficiency is a legitimate concern of government.  As he says at para. 425, “The AGBC’s anxious concern for trial efficiency is misplaced.” Here again, with respect, I completely disagree.  Courts cost money.  Whether that money comes from taxpayers or feepayers or some combination of the two, its expenditure cannot be immune from public scrutiny or accountability.  Calling something an arm of government, as opposed to a service, does not mean that the public is no longer entitled to care about how much it costs, or whether it is operating effectively and efficiently.  This is not about inappropriately applying market or business analyses to the work of the justice system.  It’s just about making sure that the public officials who take our money use it wisely. 

It might be different if money were not involved.  Then we could have an interesting discussion about the important values that a justice system exists to protect without having to worry about how to pay for it.  But so long as the justice system is not free, it is not just legitimate but critically important to ensure that its resources are well-spent, and in that context, questions of efficiency are absolutely appropriate.  This is particularly so, given the enormous burden of cost, delay and complexity placed on litigants.  Government, which is ultimately responsible for all public expenditure, ought not simply to want efficiency just for the sake of the fiscal bottom line.  Government ought also to contribute in whatever way it can to the design of mechanisms and processes that will improve efficiency for the purpose of maintaining public confidence in the administration of justice.  In that sense, in my view, the purpose of section 92(14) of the 1867 Constitution Act is not to exclude government from the work of advancing the goal of fair, affordable, effective, reliable and efficient administration of justice, but instead to make government – the provincial government –responsible for all those goals.

Plainly Justice McEwan disapproves of the forms of discourse which speak of citizens and litigants as “users” of the “services” of a justice “system.”  It is in this context that he quotes from Michael Sandel’s lament for the “marketization of everything”.  (quoted at para 430).  While we would all surely agree that “some things cannot be for sale,” the notion that a court hearing fee is “justice for sale”, though rhetorically lovely, lacks substance.  A hearing fee is just that.  No one is trying to sell justice.  But a public system that is very expensive to run and susceptible to abuse by those who are prepared to use its inefficiency as a lever to extract advantage ought to be concerned to look for ways ensuring that its resources are used only to the extent needed.  That’s not selling something, it’s managing it.  And it’s not commodifying justice; it’s an acknowledgement that there is a considerable cost associated with operating the labour-intensive, complex, tradition-laden, public facility known as a courtroom, and that asking the litigants who seek and need justice to pay something for that – to allocate the cost among the public and litigants – is not a violation of our fundamental constitutional rights and obligations.

A last word about the facts of this case

The points I am making here are not merely theoretical.  They all have practical application in the context of the very case we are discussing.

  1. Courts as a “valued but last resort”. 

For all the high-minded constitutional analysis, this was a custody dispute, a private fight between a mother and a father.  This was not a transactional dispute between two commercial parties who will never see each other again.  It was a relational dispute between two parties who, whatever the outcome, will share responsibility for child-rearing for a generation.  Courtrooms are not good places to build strong, durable families.  They are filled with (expensive) legal professionals, who argue, sometimes quite stridently, about the facts and the law.  They challenge, belittle and intimidate witnesses, all in the name of discerning a particular kind of truth.  Fundamentally, the issue in this case was about where to raise a child.  Throwing legal rights and entitlements into that mix is, I recognize, something we have gotten used to, but it’s surely an inadequate substitute for responsible decision-making by two people who have brought a child into the world.  Legislatures have done a lot to try to ensure a fair balance in the distribution of parental (and child) rights and responsibilities, but there’s not much evidence that nasty custody fights make for better child-rearing. 

The idea that government should be able to set court hearing fees at a level that would cause potential litigants to think carefully before going to court does not immediately strike me as problematic, particularly in the context of the facts of this case. 

  1. The efficiency question.

The judge holds at para. 425 “Courts of inherent jurisdiction are equipped with all the tools they need to manage trial and to deter time wasting, and they use them.”  I respectfully disagree.  The facts of this case are sufficient for me to make my point.

There is no good reason why this case should have taken more than two days.  Half a day for each of the parents to explain the circumstances, and a second day for them to argue about their claim.  Instead it took ten.  I realize that a battery of lawyers will now line up and explain why I am wrong.  Go ahead.  My conviction is simply this: until such time as judges and lawyers (and legislators) find a way to sort out issues like those in this relatively simple case in a reasonable time, and with reasonable expense (and with great respect, it is mainly the lawyers and judges who make things slow, inefficient and expensive), the public will continue to lose confidence in the justice system and do everything they can to avoid going to court.

If the prospect of paying $3600 in hearing fees might cause a reasonable person to figure out how to run this case in two days instead of ten, could we not reasonably contend that justice has in fact been advanced, not impeded?

A last thought

In the final analysis it seems unlikely that the appeal courts will agree that our constitution is so structured that any court hearing fee – at any level - is an impermissible barrier to justice.  The law is already clear (as Justice McEwan acknowledges) that court filing fees, at least if set at a level which bears some relationship to the cost of doing the work associated with maintaining a court registry, are permissible, and I am not strongly drawn to the proposition – on which this decision depends – that a hearing fee and a filing fee are qualitatively so different from each other as to lend to completely different analyses.  And while our legal system is designed to encourage looking at an old problem in a new way, with different results, it seems a bold leap to have discovered only for the first time in May 2012 that the constitution of Canada has never permitted governments to charge court hearing fees.  But for all of that, this complex and challenging decision has reminded us of the unique role and importance of courts in the panorama of our democracy, and has thereby made a valuable contribution to our jurisprudence.

Friday, 13 July 2012

So is this what happens in a four year election cycle world?

This morning on the popular CKNW morning talk show segment entitled “Cutting Edge of the Ledge”, there was a discussion between Bill Good, Keith Baldrey and Vaughn Palmer about the issue of the liquor distribution branch proposed sale that has been in the news for the past few days.  The pundits expressed the view that there ought to have been a process to give the public a chance to participate in the discussion about the potential privatization of the liquor business, which I suppose is an interesting question, but is not the reason I am writing this blog post. 

Keith Baldrey then said something like this:

This is not something to be signed before an election campaign. You can question whether the government really has a mandate right now anyway to do much of anything. I think you have to wait till a new government, whether it's the Liberals or more likely the NDP, is sworn in and they're given a new mandate by the people. Then you can revisit something that has pretty extensive and wide-ranging ramifications.

In a word, wow.  Apparently the government has no mandate to, well, govern. 

Why would that be?  Is it because the Liberals are behind in the polls?  So does that mean we are now governed in between elections by public opinion polls?  Or maybe it’s just that the four year term of office provided by law is really only a three year term?  Or is it that we are “before an election campaign”, even though the election is ten months away?

Several hours later, I am still flabbergasted by the notion that the government no longer has the authority to “do much of anything”.  What would happen if a serious issue arose where government had to do something – an earthquake, a collapsed bridge, a massive forest fire?  Or perhaps the federal government adopts a major policy shift – cuts federal transfer payments for health care, for example?  Or someone comes up with an idea for policy reform that really ought to be implemented sooner, rather than later – the Cowper report on justice reform, for example.  In all these cases, if the Baldrey view is correct, government would have no mandate to do much of anything.

It’s one thing to say that the government ought not to make a major change in liquor policy.  I understand that point, even though I think most of what has been said about that issue (as in, “how dare the government contemplate changing its mind ten years, two elections and a premier after it initially decided against privatization”; and “isn’t there something wrong when government decides to think about something because a private citizen or corporation asked it to, as opposed to coming up with the idea itself”) doesn’t strike me as all that convincing.  But it’s quite another thing to say that government cannot undertake a major policy initiative in the last year of a four year term.  That, it seems to me, is not the way anyone would want us to be governed.