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Systems of Civil Justice Task Force Report: Executive Summary

The full version of the Systems of Civil Justice Task Force Report is available on the CBA websitePDFExternal Link.

Introduction

The Canadian Bar Association established the Systems of civil justice Task Force to enquire into the state of the civil justice systems in Canada and to develop strategies and mechanisms for modernization of the system. The CBA recognized that while we have much to be proud of, it is increasingly difficult for the justice systems to be responsive to the needs of contemporary Canadian society.

The Task Force tabled its 84 page report at the CBA Annual Meeting in August 1996. The recommendations were adopted by the CBA National Council at its Mid-Winter Meeting in February 1997.

The Task Force

The Task Force included representatives of the judiciary, the practising bar, court administrators, the public and the corporate sector. The members of the Task Force were:

The Task Force developed a comprehensive work plan for research, consultation and communications.

The research program involved the preparation of major papers on deficiencies in the system, issue papers on discrete reform issues and several larger studies, including an analysis of the literature on civil justice reform and a case study on complex litigation. An important component was an analysis of public perceptions of the justice system. The research papers are available from the CBA National Office in Ottawa.

The consultation program involved:

The mandate of the Task Force was to make recommendations which would be generally applicable throughout Canada. The Task Force recognized that the need for reform of the civil justice system would vary from jurisdiction to jurisdiction. Thus, a problem identified in one province or territory might not be of concern in another part of the country. In the result, the Task Force focussed its efforts on addressing problems which are common across Canada. Where possible, the Task Force identified strategies which could be undertaken at the national level to facilitate the implementation of various reforms.

Thus, the Task Force emphasized:

Issues and Concerns

The Report identifies the main concerns of the public about accessibility to the civil justice system. These are:

These complaints are widespread and are supported by surveys of the public and the legal profession. The civil justice system has been slow to change, however, and there is a need for new approaches to minimize delays, lower costs, improve efficiencies and increase the level of public understanding. The Task Force identified a number of systemic shortcomings. These included:

Lack of a Sufficient User-Orientation

Traditionally, the court system and the practice of law have been peer-oriented in that operations are organized for the convenience of the professional participants. The absence of a user orientation and involvement is a leading cause of the lack of public confidence.

Complexity and Inflexibility

Procedural complexity is inherent in the system. For example, rules of procedure and practice contain many required or optional steps that create opportunities for extensions of time, reopening of earlier decisions and litigation of minor points. These factors lead to added cost and delay.

Traditional Approaches to Litigation

As with many institutions, the civil justice system is subject to the inertia of operating "the way we have always done things", even in the face of clear evidence of unwanted effects such as delay, cost and lack of understanding. Thus, some lawyers, judges and administrators resist change and cling to the traditional ways of doing things.

Inadequate Management Tools

There is an appalling lack of management information systems relating to the technological capacity, administrative and management structure of the courts and the handling of cases. The need for reliable statistics was raised repeatedly during the National Conference sponsored by the Task Force.

Accountability and Transparency

Most Canadians cannot identify who is in charge of the justice system. There is a general lack of information about the system and reform efforts. Unless the public understands the nature and importance of the civil justice system, there will be little support for reform efforts. Ways must be found to make the system more comprehensible and transparent to potential users.

A Civil Justice System for the 21st Century

To address these problems the Task Force proposes greater public involvement in the system, early consensual resolution of disputes and technological change. In the words of the Report:

Our vision for the civil justice system in the twenty-first century is of a system that:

A central recommendation is what the Task Force calls a "multi- option justice system" which emphasizes and provides opportunities for the early settlement of disputes and requires efficient case management for those disputes that must go to trial.

The multi-option civil justice system proposed is premised on:

In order to ensure a system that is more responsive to the needs of users and is able to provide multi-option civil justice, court management and law practice must be modernized through the integration of technology and management tools. Change will also require novel approaches to education and training.

Themes and Recommendations

The Report contains 53 recommendations which are divided between reforms which directly address the multi-option civil justice system and those which will encourage implementation of these reforms.

Some of the recommendations directly address institutional or procedural reforms that will be required, others are directed at the creation of commonly accepted performance standards. Other recommendations suggest pilot projects to test new initiatives, and measures to raise the level of public understanding.

Achieving reform requires the continued involvement of all involved in the civil justice system: users, lawyers, judges, legal educators, court administrators, government agencies. Virtually every recommendation involves overlapping areas of competence or jurisdiction. No one group can accomplish reform on its own.

Responsiveness to the Public

A number of recommendations are targeted at increasing the responsiveness of the system to the needs of the public. The Task Force recommends that there should be community input and public involvement in court administration. The recommendations include:

In addition, lawyers need to emphasize their service role and improve their relationships with the public and individual clients. To this end, the Report recommends that lawyers:

The CBA is asked to provide assistance to law firms in accomplishing these recommendations. In addition, the Task Force recommends that the CBA develop a program to promote, monitor and publicize the level of pro bono work carried out by lawyers and notaries.

It is recommended that Law Societies give greater priority to the enforcement of professional standards and that there be a specific professional obligation to explain available dispute resolution options to clients.

A Multi-Option Justice System

The Task Force advocates the integration of dispute resolution in the civil justice system. The Report recommends:

Court Supervision of Cases

The Task Force concludes that there must be greater court supervision of the progress of cases. This should be accomplished through the establishment in each trial court of a caseflow management system to monitor the movement of cases and to enforce timelines. Such a system can include:

In addition, there should be increased access through improved small claims procedures and the establishment of expedited and simplified procedures. The Task Force recommends that:

These changes are matched by recommendations for appellate courts. The Task Force recommends that appellate courts:

Procedural Reforms

The Task Force recommends specific procedural reforms to expedite and simplify discovery, early disclosure and expert and opinion evidence.

A final component of trial reform is change in the incentive structure in litigation. The Task Force recommends that each jurisdiction develop a system of incentives and sanctions to encourage settlement and prudent use of court time including a reassessment of current indemnity principles.

Modernizing the Courts

The Task Force makes a number of recommendations aimed at modernizing the courts and court administration. The Report identifies outdated management structures, lack of management tools and inability to take advantage of modern technology as deficiencies which inhibit reform. The Task Force does not promote a particular management model but does recognize that there should be a measure of autonomy in court administration. A streamlined and independent administration will assist in increasing access and reducing costs and delay. An effective structure will also ensure the necessary autonomy for the courts, greater public participation and an opportunity to develop a more highly specialized court staff. In addition, administrative autonomy of the courts will assist in ensuring an adequate resource base for court operations and smoother communication among the judiciary, governments and lawyers. One of the greatest weaknesses in court management is the lack of base line data. To remedy this the Report makes the following recommendations:

Education and Training

As noted, the Task Force identifies a need for greater public awareness and more information about the civil justice system and dispute resolution in general. Specific recommendations are aimed at facilitating the teaching of dispute resolution skills at appropriate levels of elementary and high schools and ensuring that the course curriculum in Grades 7-12 includes instruction in the operation of the civil justice system.

Members of the legal profession will require new training in order to work in a multi-option civil justice system. One specific recommendation is that law schools, bar admission courses and continuing legal education programmes offer training on dispute resolution and its integration in the lawyering process.

On a broader level, the Task Force recommends a comprehensive review of legal education by a joint committee of the Council of Law Deans and the CBA. This review would consider the whole spectrum of service providers (paralegals, community legal workers, lawyers, notaries, non-lawyer adjudicators, mediators) and the full range of educational opportunities (pre-law, law, bar admission, and continuing legal education).

Implementation

The CBA has established a national Implementation Committee to encourage broad discussion of the Report among members of the legal profession, the judiciary, government, court personnel and interested members of the public and to develop an action plan for implementation of the recommendations. Like the Task Force, the Implementation Committee is broadly representative of all sectors of the civil justice system.

Members of the Implementation Committee

It is important to repeat that the Report of the Task Force is not addressed to the CBA alone. No one agency, sector, group or individual can achieve reform in isolation. In may ways, the fundamental purpose of the Report is to broaden and renew the existing commitment of all those in the system to better civil justice.