As a guest on the Bill Good show this morning, I opined that our system of civil justice is broken.

I believe that access to the system is becoming restricted to wealthy institutions who have the resources to treat civil litigation as a game to be won at all costs.  The average person cannot afford to be on the playing field with such cynical opponents.  As a result only those individuals with significant wealth or with a case that may be worth a lawyer’s involvement on a contingency fee basis can entertain seeking “justice” from the courts.

How did it come to this?

Measures designed to enhance access to justice and streamline processes have had the opposite effect.  Changes to the Rules of Court, as Chris Harvey, Q.C. has alluded to in the editorial posted below, have required more legal resources to be consumed on every case.  A simple Chambers application, for example, once could be brought on two days’ notice with minimal paperwork.  Now, it takes a couple of weeks to get an audience with a judge after preparing, exchanging and filing binders of material.  Judicial case management, while having some positive aspects, means that litigants are expected to attend pretrial hearings much more frequently.

All this comes at a cost.

This cost is going to discourage people from hiring lawyers and force them to either abandon meritorious claims or attempt to represent themselves before the courts.  From a societal point of view, this cannot be desirable.  We (lawyers, judges and the public) have to stop paying lip service to systemic reform and take a good hard look at the civil justice system from the perspective of the average person.  A justice system that is the preserve of only the very wealthy is really no system at all.

Chris Harvey, Q.C., the retiring editor of The Advocate, has fired a parting shot at the Rules of Court in the September edition of that august journal.  He concludes:

“We should abolish the current civil rules and start over.  They have been an unmitigated disaster.  They purport to provide a framework that is ‘just speedy and inexpensive’ but in fact is the opposite.  We should accept no replacement rule unless in a practical way it serves to reduce delay and expense and promotes getting at the truth at trial.”

The Law Society of British Columbia’s upcoming Annual General Meeting will give its members an opportunity to consider some governance issues, including a members’ resolution concerning the disclosure of benchers’ (governors’) expenses.

I have co-sponsored this resolution because I feel that the Law Society should be a leader in conducting its business in a way that is both transparent and accountable to its membership.  It recently paid B.C. lawyer Elizabeth Watson’s firm the sum of $150,000 to review the Law Society’s governance practices.  Watson’s 2012 report to the Law Society’s Governance Committee caused it to recommend, among other things, that the benchers consider disclosing their expense reimbursements to the membership, but the benchers rejected that recommendation.

On September 9, 2013, a few weeks after Marti Katenberg and I had submitted our resolution to the Law Society, it circulated the following notice to the membership:

“The resolution submitted by Mr. Ward and Ms. Katerberg for consideration by the members at the Annual General Meeting proposes that that the Law Society disclose the complete individual Bencher expense records of all Benchers, from January 1, 2012 forward, by posting them on its website.

The Benchers considered the disclosure of individual Bencher expenses in conjunction with many other recommendations arising from the 2012 governance review. At the time, the Benchers were concerned that disclosure of individual Bencher expenses would be unfair to those Benchers from outside the lower mainland whose expenses are invariably higher due to travel and accommodation costs associated with their attendance to Law Society business. However, the Benchers also created a new Governance Committee and charged it with considering governance issues and making further recommendations to the Benchers.

The Governance Committee has now considered the issue of disclosing individual Bencher expenses. It has recommended that the Benchers publish on the Law Society website an annual summary of individual Bencher expenses by category, which will provide an appropriate level of transparency that will permit members to understand the differences in Bencher expenses. The Benchers will consider this recommendation before the annual general meeting.”

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Although the benchers may have changed their minds on this issue, the devil is in the details.  If the Law Society does not agree to disclose individual bencher expense records, effective January 1, 2012, then I urge all members who care about governance issues to attend the AGM and vote “yes’ to Resolution 3.

If adopted, the resolution would require the Law Society to be more transparent and accountable to its membership, and would remind them that the $30 million or so at their disposal each year comes from us, the members, and should be spent with care.