Judge calls on colleagues to embrace trials

Responding to concerns that a Toronto-area family is facing financial ruin and may have to represent themselves in a high-profile lawsuit launched by York University, an Ontario judge has written a treatise on access to justice calling on his colleagues to take urgent action to ensure litigants have some prospect of affording to defend themselves.

“Are judges becoming indifferent to the task of attempting to control the civil justice system?” wrote Superior Court Justice David Brown in York University v. Michael Markicevic on June 25.

“Here we are moving closer to the present day reality on the ground. One cannot overstate the oppressive effect on judicial morale of the endless waves of cases which seem to be going nowhere in a civil justice system that is sinking. Why try to be creative when the system, with a life of its own, grinds relentlessly on and downward?”

Brown made the comments in a $1.2-million fraud case launched by the university against one of its former executives, Markicevic, along with several members of his family. Markicevic’s daughter, Mima Markicevic, was seeking to discharge a certificate of pending litigation against a Vaughan, Ont., property in order to fund the family’s defence. Brown, who decried the slow pace of the justice system in his ruling, estimates the family faces $525,000 in legal fees to defend itself. That’s if his planned 10-day timetable for the trial turns out to be realistic. Already, the case has languished since early 2012, he noted.

For Brown, a big part of the answer to these conundrums is to focus on bringing cases to trial quickly and efficiently rather than always looking to alternatives such as mediation. “Have judges lost touch with how to move a case along to a final adjudication?” he wrote. “For the better part of 20 years, the relentless mantra has been trials are bad, mediation will solve all problems. Of course, it hasn’t.”

The issue of access to justice, of course, is an issue the profession has been talking about for a long time. In a recent report released by the Action Committee on Access to Justice in Civil and Family Matters, the court processes simplification working group also called for a culture shift within the justice system. “All court service providers, specifically including judges and court administrators, must take a leadership role in terms of enhancing the quality of the administration of justice,” the report stated. But while Brown focused largely on the value of quick trials, the report considered judges’ roles more broadly. “Judges should see themselves not only as neutral adjudicators but also as engaged problem solvers (through judicial dispute resolution, judicial mediation, etc.), which includes a willingness to be open to and trained in these procedures (the same culture shift is occurring, and needs to continue to occur, at law schools and the bar).”

But for others, a key aspect to the culture shift many people are calling for relates to technology. Bringing the courts into the modern age is a largely untapped area that holds great potential for responding to the access to justice problem, says Ontario Court Justice Harvey Brownstone.

“It’s a huge, huge problem for us,” says Brownstone, a family court judge. “We’re still operating family courts like they did a 100 years ago.”

For Brownstone, the first Canadian judge with a TV show, the solution starts by asking if everyone who comes to court actually needs to be there.

“What I mean by that is people have to attend courts even for very minor things,” he says. “The biggest technological advance that can enhance access to justice and make legal services a lot cheaper for people is e-filing: filing a document without having to come to court.”

Not only would electronic filing make the courts paperless, it would also significantly cut down the fees litigants have to pay lawyers to physically file documents, says Brownstone.

Of course, there are security concerns when it comes to sending legal documents via the Internet, but there are ways to overcome that, says Brownstone.

Brownstone, who has made several videos answering family law questions, also sees online content as another simple way to advance access to justice.

Entrepreneurship in the legal field outside of the courtroom is another part of the solution.

Jeff Fung, for example, founded mylawbid.com, a web site that connects members of the public to lawyers at the very beginning of their case. “I think that’s the hardest part when you start out,” he says. “When you’re looking for a lawyer, it’s very hard. You have many questions or you don’t know what the pricing is.”

Mylawbid.com “sort of balances out the negotiation” between a lawyer and a potential client, says Fung. The web site allows people with legal needs to describe their case and compare responses from lawyers who compete for the retainer.

“I think that’s a very good start as to how people can get better access,” Fung notes.

But as Monica Goyal, founder of My Legal Briefcase, points out, services such as hers can only do so much when the courts don’t embrace technology. My Legal Briefcase allows users to ask legal questions online as well out fill out court forms to generate documents including statements of claim, wills, and powers of attorney. Yet without electronic filing, people still need to go to court to hand over those documents, she says. “You can have a service like My Legal Briefcase, but at the end of the day, you have to interface with the court,” she says with a laugh. “At the end of the day, My Legal Briefcase can only be a piece of the solution.”

Over the last several decades, the legal industry has advanced in many ways in Ontario “but if you look at technology in the courts, it has stagnated,” says Goyal. “We’re so behind compared to even other jurisdictions.”

In New York, Britain, and British Columbia, electronic filing is streamlining processes and simplifying the courts, she notes. “It’s old technology; it’s not even new technology. One of the things I find is that the technology we need for courts is not cutting-edge.”

Brownstone makes the same point about teleconferencing in court. Family courts, he says, see many cases where the parties live in different cities. Currently, courts have resorted to “a cumbersome and paper-driven” system to deal with such cases, he adds. “Why in the world they don’t have Skype or one of these teleconferencing technologies so that there’s one hearing where both parties are participating by video is beyond me,” he says.

The use of teleconferencing would go beyond support orders in family court, Brownstone says, noting that a video hearing would come in handy in abduction and custody cases as well.

Goyal and Brownstone also cite online dispute resolution as another way to make the justice system more efficient. The discussion over court technology is hardly new, says Goyal, who calls it “a good question to ask why we’re not moving forward.”

Cost is one issue, Brownstone suggests, but moving forward will require making court technology a priority. This month, the Ontario Court of Justice will run a pilot project to produce court orders “right there and then,” he notes. Including himself, about four judges are participating in a process that will include using software created by the Ministry of the Attorney General to print orders in the courtroom. The procedure would cut the time spent on producing court orders, says Brownstone.

“That would be a big, big thing,” he says. “That’s a big, innovative step that we’re about to start.”

Whatever the solution, the need to address the access to justice problem quickly is urgent, according to Brown in Michael Markicevic. Noting the prospect that the Markicevic family’s legal costs could go even higher than his estimate, Brown shuddered at the implications. “If we have reached the point where $800,000 cannot buy you a defence to a $1.2-million fraud claim, then we may as well throw up our collective hands and concede that our public courts have failed and are now only open to the rich,” he wrote.

This is the first in Law Times’ summer series on access to justice. The series will consider the issues raised in each of the working group reports prepared by the Action Committee on Access to Justice in Civil and Family Matters.

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