Top judge says access to justice a problem

Legal profession should be `reconfigured' to improve matters
February 06, 2008


Ontario's Chief Justice Warren Winkler says excessive costs and trial delays don't permeate system.

Access to justice is a hot topic "from the Atlantic to the Pacific, from Hudson Bay to the 49th parallel" but stories fixing a price tag to trials are "killing" the justice system's reputation with the public, Ontario's chief justice says.

While ensuring people can afford to go to court is the most critical issue confronting the justice system, problems such as excessive cost and trial delays don't permeate Ontario's justice system, Chief Justice Warren Winkler said yesterday.

There are no access to justice problems in Small Claims Court, where 50 per cent of all civil cases are heard, or with the 12 per cent of cases that go to trial using simplified litigation rules, Winkler said in a speech to the Ontario Bar Association yesterday.

However, that's not to say the legal profession shouldn't be doing more to reduce the cost of litigation, he said.

"If I think in terms of $1,000 an hour (charged by some lawyers) in downtown Toronto, for the average person in this province, that's a week's work," said Winkler. "The ratio is 40:1. Who can afford that?

"I'm not going to stand here today and tell you there is not an access to justice problem in the civil justice system in Toronto, because there is. But there has to be a scope put around it," he said.

As part of an ongoing series on access to justice that began last year, the Star reported that an average three-day trial in Ontario is likely to cost about $60,000.

Winkler said the legal profession needs to be "reconfigured" to provide access to justice across the whole system.

When a client walks through the door, lawyers must be honest with themselves about what the issue really is and the amount of work the case requires, he said.

Many cases turn on a single piece of paper, require no more than two hours to prepare and no more than an hour to argue in court.

Showing up for trial with two associate lawyers in tow often isn't necessary, he said during the association's mid-winter conference in Toronto.

All true, though sometimes difficult to achieve, said James Morton, the association's past president.

"The problem is it really does cost $60,000 or more to do a three-day trial and while it may well be that you should be able to do most of these cases in an afternoon, the fact is you can't because you would need both sides to co-operate fully."

There's usually an incentive for one side to delay the case and when that side has lots of money to spend on lawyers, trials can stretch for five or six days, he said. "That's catastrophic."

"I don't think the chief is wrong, in that there are some things being done well, and the civil side of things has improved a lot, but there are still some real problems," said Morton.

In family law courts, for instance, litigants can wait up to a year to get a simple motion heard.

In a recent report for the province, which looked only at the civil courts, former Associate Chief Justice Coulter Osborne recommended lawyers be required to set litigation budgets and that time limits be imposed on pre-trial "discovery hearings," where parties are cross-examined by their opponents.

In an interview, Winkler said he agrees with most of Osborne's 81 recommendations.

Attorney General Chris Bentley told the bar association on Monday that he's meeting with lawyers and judges around the province to get their views.