Civil reform deserves consultations and independent review — Benchers
The Law Society has written to the Civil Justice Reform Working Group — part of the BC Justice Review Task Force — to advocate a comprehensive study of civil law reform in BC. The Task Force issued a Green Paper on civil justice reform in the fall of 2004 and appointed a working group to report out by the end of 2005. The Benchers believe that civil law reform is important and therefore merits significant time and resources. They are asking the Task Force to entrust this project to an independent body experienced in research and analysis, such as the BC Law Institute, and to provide proper funding to carry out that research, including in-depth public consultations.
In September 2004, when then Attorney General Geoff Plant, QC announced creation of the Civil Justice Reform Working Group as part of the BC Justice Review Task Force, he asked a pivotal question: “Is there a better way for the BC civil justice system to resolve disputes?”
That question was central to the Task Force’s 13-page Green Paper on the Foundation of Civil Justice Reform which calls for fundamental, comprehensive reforms and broad, innovative thinking and, to sum it up, “more than tinkering.”
The Working Group on Civil Justice Reform was given 15 months to complete its study and make its final report and recommendations by the end of 2005.
The Benchers prefer the broad-brush approach to civil justice reform over a piecemeal approach. It also appears critical to meeting the different interests, problems and expectations of the many stakeholders in the civil justice system.
Because civil reform is so important, the Benchers are asking the BC Justice Review Task Force to entrust this project to an independent body, such as the BC Law Institute, with experience in research and analysis. And proper funding must be part of the plan, to allow for research and for in-depth public consultations.
“Successful reform must start from a thorough analysis of the existing system, what it is currently delivering, and how it operates,” the Benchers note in their submission. “Any analysis should include a review of short and long-term considerations and solutions set in the context of the differing objectives of the parties involved.”
The Law Society recommends research on the types of disputes entering the system, their monetary value, the parties involved, outcomes, length of time and the costs to litigate civil claims.
The working group has consulted with select community groups on the Green Paper, but the Law Society wants to see broader consultation and discussion to ensure public engagement.
As civil reforms are proposed, they need to be articulated in detail, the Benchers have urged. There have been no proposals for consultation so far. In the government’s administrative justice review, by contrast, papers were issued on specific administrative law reform proposals. The Benchers support that approach to consultation.
While the Green Paper invites a rethinking of the entire paradigm of civil justice, the government has already introduced a number of reforms in the courts, including several pilot projects set to begin September 1, 2005.
The Law Society is asking for a thorough evaluation of these pilot projects and their effectiveness in reducing costs, promoting earlier settlements and increasing access to justice.
If the primary objective of civil justice reform is to improve meaningful access to justice, more needs to be done than merely altering dispute resolution mechanisms or making changes to court-based processes. “For many individuals, it is their lack of knowledge or understanding about the possibility of pursuing their rights or redress that prevents them from participating in the civil justice system at all,” the Benchers have stated in their submission, adding that these needs must be addressed.
While the Law Society agrees that the parties to certain types of disputes (for example, many family law matters) are often better served by a non-adversarial approach, a rights-based adjudication process must continue to be available for the proper functioning of the legal system.
As civil justice reforms come under review, the Society flagged some matters for further consideration:
- support for lawyers to focus on the essential facts, documents and law to determine the critical issues in a case, without needing to take full advantage of every element of process available or plead every conceivable cause of action or defence in order to advance or defend a client’s case;
- measures against vexatious litigants whose cases have no merit, as well as with vexatious agents;
- options for waiving, reducing or deferring court fees in pro bono matters;
- an analysis of how the courts’ infrastructure and administration might be improved or better resourced;
- an evaluation of ADR processes with a view to matching different dispute resolution mechanisms to different dispute types;
- creation of a unified family court;
- use of judicial case conferences in most civil cases;
- a look at how collaborative law could be used effectively for appropriate non-family, civil law matters;
- identifying and removing barriers to the civil justice system for people with physical, mental and developmental disabilities;
- modifying the court calendar system to allow for the same judge to hear all pre-trial motions in a single matter.