Access to justice is a constitutional right, but the cost of hiring a lawyer and filing the paperwork is preventing many people from seeking a resolution to their legal problems in the courts, Justice Marvyn Koenigsberg of the Supreme Court of British Columbia said yesterday.
"The fees charged by the legal profession, for most people, are completely beyond their reach," she said.
"The middle class has been abandoned by the legal profession."
Court filing fees are another reason trials have become off-limits for Canadians, said Koenigsberg. In British Columbia, fees payable to the Crown for the documents filed for an average three-day trial jumped from approximately $535 in 1990 to $2,260 in 1998.
For a 15-day trial, the filing fees increased from about $1,895 to $8,356.
In Ontario, the fee for simply initiating a legal action in the Superior Court of Justice is $181.
Koenigsberg was speaking at a Toronto policy forum hosted by the Advocates' Society, an association of civil litigation lawyers. The meeting brought together lawyers and judges from across Canada and England to discuss ways of making the trial process quicker and more affordable.
Their recommendations will be taken to a national conference in Montreal in May on improving access to the justice system.
The proposals put forward yesterday include simplifying some trials so judges can decide a case on the basis of affidavits and written evidence instead of hearing from live witnesses in court.
Another recommendation calls for restrictions on the use of expert witnesses to cut down on expense of litigation and the length of trials.
In England, one of the reforms introduced after a wide-ranging review of the civil court system a decade ago allows both sides in a case to rely on a single joint expert witness, said Robert Musgrove, chief executive of the Civil Justice Council of England and Wales.
Canadians are concerned that if they end up in the civil court system, they will pay not just to win or lose but also to wait because of long delays, said Advocates' Society president Linda Rothstein.
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`The fees charged by the legal profession, for most people, are completely beyond their reach. The middle class has been abandoned by the legal profession' Justice Marvyn Koenigsberg, the Supreme Court of British Columbia
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Increasingly, people have come to believe courts are the place where they should turn to obtain social justice, he said.
But in Montreal, "ordinary people have simply deserted the court process," said Justice Andre Wery, Associate Chief Justice of the Superior Court of Quebec.
The number of new civil cases filed in the court dropped 54 per cent between 1990 and 2005, he said, while the number of people appearing in court without a lawyer has increased.
"I believe it's simply because people can't afford the judicial process any more," he said.
While lawyers' fees and court filing charges are two of the contributing factors, the problem is much more complex, Koenigsberg said. Cases themselves have become longer and more complicated since the arrival of the Charter in 1982, when Canadians acquired an entirely new set of legal rights, she said.
Wery said he doesn't believe the legal issues themselves have become more complicated, but court procedures have grown more complex.
In Ontario, many litigants are taking their cases out of the courts and heading for private arbitration or mediation because of the cost associated with the public justice system and the uncertainties of having no say over who the judge will be, said Justice Warren Winkler of the Superior Court of Justice.
Part of the blame lies with judges themselves, who are not doing enough to control lawyers who add to the length and expense of trials by, for example, engaging in needlessly long cross-examinations and eliciting irrelevant evidence from witnesses, Winkler said.
"The buck stops here," he said. "We've got to be more interventionist. We've got to do our job."
Toronto lawyer Alan Lenczner said there is a "huge inconsistency" in the "calibre and quality" of judges, who need better training in the art of disciplining lawyers.
"We need a judges' school and we need to send these judges to school," he said.
Lawyers would no longer bring useless motions if a judge had "the courage" to "whack" them by ordering them to pay their opponent's legal costs, he said.
Ontario Attorney General Michael Bryant agreed that change is generally needed to improve access to the courts, but said the province still has "the healthiest legal aid system in the country" and one of the healthiest "legal assistance" systems in the world.